Document Type

Article

Publication Date

10-2018

Abstract

President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring the nomination to a vote. That change was adopted by a virtual party line-vote, and then Judge Gorsuch was confirmed by a similar vote.

Now compare the nomination of Benjamin Cardozo in 1932. Cardozo was the chief judge of the New York Court of Appeals, the highest court in the largest and most important state in the nation, at a time when (as John Goldberg has pointed out) state courts occupied a greater position in the national consciousness than they do now. He was the most revered and probably best known judge in the nation not on the Supreme Court. When Justice Holmes retired, and interest immediately centered on Cardozo, he insisted privately that he wished not to be asked and that he did not believe he ought to accept the nomination if it were offered. But in fact he resolved that if asked he would accept—as he put it a few months later, “as one must accept sickness or death.” And so, when the offer came, by telephone, he accepted immediately. The White House announced without fanfare or elaboration that the President had sent Cardozo’s name to the Senate. The nomination was received with nearly universal acclaim. As was the practice in those days, the hearing was quick and the nominee did not testify. Confirmation was unanimous, without need for a roll-call vote. Do not bet on that happening any time in the near future!

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