“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

On February 5, 1988, Robert Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit, having served less than six years on the bench.[1]  In the previous year, Bork had endured a famously contentious and bitter battle for a seat on the U.S. Supreme Court.  While Bork sought to move on from the bench, his resignation would trigger another confirmation battle, leaving a well-respected D.C. litigator and trailblazer as its casualty.

Shortly after Bork’s resignation, the Reagan Administration quickly settled on a nominee: U.S. District Judge Karen Henderson.[2]  Henderson was young, conservative, and had the solid support of Judiciary Committee Ranking Member Strom Thurmond.[3]  Furthermore, Henderson was a woman, and satisfied Democratic Sen. Edward Kennedy’s push for more female and minority judges.[4]  However, with Henderson’s name all but ready to move forward, the judge unexpectedly withdrew from the process, citing family considerations in South Carolina.[5]  This left the Reagan Administration turning to their back-up, a prominent D.C. lawyer named Judith Richards Hope.

Hope was born Judith Richards in Cincinnati, the daughter of a Methodist minister and a social worker.  Hope grew up in the small town of Defiance, Ohio and started work at the age of twelve in a dry-cleaning plant, getting paid twenty-five cents an hour.[6]  She attended Wellesley College, graduating magna cum laude in 1961 and joining Harvard Law School as one of just fifteen women in her class.[7]  Hope graduated Harvard in 1964 alongside stalwarts including future Supreme Court Justice Stephen Breyer and future D.C. Circuit Judge Judith Ann Wilson Rogers.

By 1988, Hope had established herself as one of D.C.’s most prominent attorneys.  She had become a partner at Paul, Hastings, Janofsky & Walker, becoming the first woman to serve on the firm’s Executive Committee.  Furthermore, Hope had served on the White House Domestic Council in the Ford Administration and as vice chair of the President’s Commission on Organized Crime under Reagan.  In 1984, Hope served as the Chairwoman of Lawyers for Reagan-Bush.[8]  Additionally, she had a thriving practice, with clients including prominent screenwriter Nora Ephron.[9]

Despite her credentials, the Reagan Administration was unenthusiastic about her nomination, specifically doubting her commitment to conservative judicial principles.[10]  Additionally, Hope was reluctant to take the judgeship, which would constitute a significant pay cut.[11]  Nevertheless, with an important seat at stake, Reagan personally called Hope and persuaded her to accept the nomination.[12]  With her acquiescence, on April 14, 1988, Reagan officially nominated Hope for the vacancy.

Unfortunately for Hope, Bork’s resignation had left a tenuous balance on the D.C. Circuit, with six Reagan-appointed conservatives countering five older liberals (including future Supreme Court Justice Ruth Bader Ginsburg).[13]  Furthermore, one of the leaders of the court’s liberal wing, Judge Spottswood Robinson, was facing health issues and was considering retirement.[14]  As such, many Democrats sought to block any Reagan appointee to the court, preferring to leave the seat open for a Dukakis appointment.[15]  However, other liberals argued that the moderate Hope was the best nominee they were likely to get from a Republican Administration, noting that, if Bush won the election, he would likely nominate a more conservative candidate.[16]  Caught between the two sides, Senate Judiciary Committee Chair Joe Biden declined either to block Hope outright or to move her nomination forward.  Instead, her nomination sat in limbo.

Hoping to end the embargo on Hope’s nomination, Judiciary Committee Republicans excoriated the Democratic majority, with Sen. Alan Simpson calling the lack of action “inane, banal, and childish.”[17]  The attacks did not have the desired effect, however, as Democrats chose not to include Hope’s nomination in their final hearing of the year.  In his defense, Biden pointed out that he had processed “at least 10 more judges” than Republicans expected to get.[18]

Desperate, the White House reached out to Senate leaders seeking to put a package of nominees together for confirmation and noting that Hope was one of their top priorities.[19]  However, the outreach backfired.  As one journalist noted, “[p]recisely because the White House wanted them so badly, the Democrats were determined to bury…Hope”[20]  Instead, Democrats and Republicans cut a deal on a package that left out Hope.  As the 100th Congress came to an end, so did Hope’s nomination.[21]

Unfortunately for those hoping for a more liberal D.C. Circuit, Vice President George H.W. Bush kept the presidency in Republican hands in the 1988 election.  Paradoxically, this also hurt Hope’s chances as, during the 1988 primaries, she had advocated for a different candidate: Senate Republican leader Robert Dole.[22]  Perhaps sensing the political difficulties, Hope announced that she would not seek renomination, and Bush filled the vacancy with the then-Chairman of the Equal Employment Opportunity Commission, an African African conservative named Clarence Thomas.[23]

With Thomas’ subsequent elevation to the Supreme Court, it is hard not to wonder what could have been.  At only forty-seven at the time of her nomination, would the relatively moderate Hope have become the stealth candidate to replace Justice Brennan, rather than then-Judge David Souter?

Stepping back, it is clear that the nomination’s defeat had little to do with Hope.  Had she been nominated at a different time (or under a different Senate), Hope would likely have sailed to confirmation.  For her part, Hope has continued to blaze a trail for other female judges and attorneys, mentoring many as a law professor at Harvard and Georgetown.  She remains to this day one of the luminaries of Harvard Law School and the legal profession.

---