94 Ind. L.J. Supp. 1 (2018)

handle is hein.journals/spplmntinlj94 and id is 1 raw text is: 








   Sites  of Storytelling:  Supreme Court Confirmation Hearings
                               PATRICK BARRY*

                               INTRODUCTION

   Supreme  Court confirmation hearings have an interesting biographical feature:
before nominees even say a word, many words  are said about them. This feature-
which  has been on prominent display in the confirmation hearings of Judge Brett
Kavanaugh-is   a product of how  each senator on the confirmation committee is
allowed to make an opening statement. Some of these statements are, as Robert Bork
remembers  from  his own confirmation hearing, lavish in their praise, some are
lavish in their denunciations, and some are lavish in their equivocations.' The
result is a disorienting kind of biography by committee, one which produces not one
all-encompassing narrative-with tensions reconciled, discrepancies explained, and
the presentation of a coherent, if complex, portrait of the nominee-but rather several
competing biographies, many of which directly war with each other.
   For Bork, those competing biographies included a biography by Senator Gordon
Humphrey   of New Hampshire, in which Bork was hailed as a brilliant constitutional
law scholar, a dedicated former Solicitor General, a respected judge, a real lawyer's
lawyer-indeed   the best qualified [Supreme Court] nominee in 50 years.2 But
another Bork biography  communicated  a much  different message: Massachusetts
Senator Ted Kennedy  characterized Bork as someone who was hostile to the rule of
law, publicly itching to overrule established Supreme Court  precedent, and
antagonistic to the rights of women   and  racial minorities.3 Senator Howard
Metzenbaum   of Ohio  created still another biography. In this telling, Bork was
someone  who  could weaken, literally with a few years, fundamental constitutional
freedoms which the Supreme  Court has protected throughout its history.'
   By the time this biography by committee had been  assembled, the portraits of
Bork contradicted each other over and over again. One made Bork out to be the poster
boy for judicial restraint; another made him out to be the poster boy for judicial
activism.5 At a certain moment, he was a kind, compassionate man with a wonderful
sense of humor; at another, he was a heartless ideologue with attitudes that were at
once racist and sexist.6 Listen for a little while and you'd hear Bork portrayed as a



* Clinical Assistant Professor of Law, University of Michigan Law School. I would like to
thank for their helpful comments on earlier drafts Enoch Brater, Eva Foti, Martha Jones,
Sidonie Smith, and James Boyd White. I would also like to thank James Coatsworth, Hannah
Hoffman, and Akash Patel for their excellent research assistance. One additional note: this
essay was prepared for publication before Dr. Christine Blasey Ford agreed to testify in
Judge Kavanaugh's hearing.
    1.  ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
298 (1990).
    2.  Hearings on the Nomination ofRobert H. Bork to Be Associate Justice of the
Supreme Court of the United States Before the S. Comm. on the Judiciary, 100th Cong. 1
(1989) [hereinafter, BorkHearings].
    3.  Id at 17.
    4.  Id. at 28.
    5.  Id. at 128.
    6.  Id. at 126.

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