Aliens on the Bench: Lessons in Identity, Race and Politics from the First 'Modern' Supreme Court

Abstract

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? Obviously, who sits on the Court matters, but why is the hearing itself important? The premise of this Article is that the confirmation process-or, more precisely the confirmation process of nominees perceived as racial outsiders-matters in part because such confirmations provide a high profile arena in which we as Americans fight to constitute our national identity. While all Supreme Court confirmations provide a platform for our ongoing debates about constitutional values, confirmations of racial outsiders do more. They provide a forum in which a more fundamental, and certainly more visceral, question arises: just who are "we the people"? I open my examination of these issues by looking at the confirmation of Felix Frankfurter. Frankfurter's was our first truly modem confirmation hearing: it was the first at which both the nominee and the witnesses provided unrestricted testimony, in an open session, exposed to the full glare of a highly-interested media. It also, perhaps not coincidentally, involved a nominee who was perceived at the time as a racial outsider.

Keywords: Supreme Court, nomination, confirmation, politics, Senate, Frankfurter, constitution law, Senate Judiciary Committee

JEL Classification: K19