The vetting of a Supreme Court Justice

Ted Frank tweeted something brilliant at us this weekend. A law professor and blogger, Kyle Graham, was digging through documents at the Reagan Presidential Library. (Side note: if you’ve never been to a presidential library, go; all the ones I’ve been to are excellent.) Professor Graham came across a great find: the vetting form that O’Melveny & Myers chairman A.B. Culvahouse used to vet Supreme Court Justice Anthony Kennedy.

The document is fascinating. Vetting somebody for a lifetime appointment is serious business, but it’s hard to imagine having your private life invaded to this magnitude.

It’s particularly interesting in light of Chief Justice John Roberts’s vote in the Obamacare case. Lots of people have asked why conservatives seem to have problems nominating justices who will doggedly toe the ideological line. Perhaps some answers can be found in the vetting document?

Professor Graham posted some highlights from the Culvahouse vetting document on his website, Noncuratlex. The full document is posted on Santa Clara Law’s website.

So do you want to be a Supreme Court Justice? First of all, just look at the interview process:

And, of course, the FBI also interviewed Kennedy’s friends, colleagues, and probably his pets if he had them.

What were they looking for? It’s pretty clear the Reagan White House, first and foremost, didn’t want to nominate a bigot (or somebody who could be painted as a bigot). These were the first questions on Culvahouse’s form for Kennedy:

I’m glad that we’re making sure our Supreme Court justices are not in the KKK. No, seriously. I’m happy we’ve advanced to the point where that’s a bad thing. Progress, baby.

There are questions about Kennedy’s finances, his parents, and his grandparents. And, of course, his sex life:

I could be wrong about this, but I think that whatever it takes to be banging chicks in junior high is mutually exclusive with whatever it takes to become a Supreme Court justice.

Lest you think these questions are needlessly invasive, they are not. I used to work opposition research. Your enemies will find out the answers to these questions, so you might as well tell the truth to your lawyer.

Noncuratlex highlights the obvious fact that the academic record for Supreme Court wannabes will be mercilessly picked through:

Relating to Kennedy’s college years:

Were you rejected by any colleges? If so, what was the basis for rejections?

Were you a member of a fraternity? If so, What hazing was there? Were there racial or religious restrictions? What was the fraternity’s reputation? Were there any bizarre rituals? Did the fraternity engage in sexual harassment?

Relating to Kennedy’s law-school years:

What was the most unpleasant or embarrassing thing that happened to you while in law school[?]

But this is the best question:

God, I hope the answer to that question was: “Glue? No. I did loads of blow. But glue? That’s freaking dumb.”

There is lots of fun stuff in these documents, but there’s a larger point here: our politics are such that all of these invasive questions have to be asked because all the answers will be figured out by the opposition. From scorned ex-lovers to that kegger the potential nominee went to in high school, somebody will find out, and somebody will try to use it against the nominee. Not all of these petty issues are nomination killers, but it takes a certain kind of person who is willing to have her life laid bare in this manner. Privacy? It doesn’t exist.

And this is Anthony Kennedy, at the time a judge on the Ninth Circuit, being vetted 30 years ago. Can you imagine what it’s like now, powered by Google? Can you imagine what it’s going to be like in the future, when the first 25 questions are all about things the person has posted on social media sites?

Holding people up to unreasonable standards is one of the reasons so many good people don’t enter into public life.

Well, that and the one time they did a line off a stripper’s back. But come on, we can’t all be choir boys.

From the Reagan Presidential Library: Glue sniffing? Did you have sex in high school or junior high? Do you buy or sell pornography? The (Draft) Background-Check Questionnaire and Other Documents Relating to the Kennedy Nomination [Noncuratlex]


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