Confirmation Hearings

One of the funniest things that I ever saw on C-Span -- not that this is saying much -- was when Teddy Kennedy questioned Ted Olson during the hearing over Olson's nomination to the Solicitor General position. This was on April 5, 2001.

Just as background, the Supreme Court has set out three levels of "scrutiny" under the Equal Protection Clause. When the government classifies or treats people differently by race, courts apply "strict scrutiny," in which the government must show a compelling interest that can't be satisfied by any other means. The government almost always loses such cases. At the opposite end of the spectrum, most economic legislation is given "rational basis scrutiny," where the government merely has to show that there is a rational basis for the law in question. Then, in the middle, governmental discrimination based on gender has to satisfy "intermediate scrutiny," where the government has to show that it has a "substantial interest" that the law furthers by means that are no more extensive than necessary.

So: In this line of questioning, Kennedy had been talking about the Supreme Court's case involving the Virginia Military Institute, which had been for males only. The Supreme Court had applied intermediate scrutiny. And Kennedy was apparently trying to ask something about intermediate scrutiny. As you can see, it's not entirely clear what:

KENNEDY: As I understand, there's a different constitutional standard when you've excluded a group, such as women, as VMI did, in meeting constitutional muster, versus establishing classes to meet the constitutional standards which are established for single sex, for example, male-female, obviously, single sex. [Huh?] There's a different constitutional standard, one in excluding a particular group, in this sense, the gender group, and the courts have used different criteria.

OLSON: The courts have in the past -- and it's still a little bit confusing with respect to the differential between strict scrutiny and what the court called an intermediate scrutiny. This was a case involving two separate institutions in Virginia, one which excluded women, one which excluded men, to provide citizens in Virginia with an option of single sex education.


KENNEDY: Well, yes, I understand that. [Said peevishly.] But as I understand the Supreme Court's ruling on excluding women as a gender and as a class, there are past Supreme Court holdings on this that are pretty clear. I want to move on on this, but that's my understanding. [Somewhere in here, one of Kennedy's aides sitting behind him got a very panicked look on his face, and started furiously scribbling a note to Kennedy.]

So using the example that establishing single sex classes and wondering if it meets muster, while on the other hand, there had been a particular exclusion of a class of people, and that has been tested in the Supreme Court before, and they've made clear findings on that, and I thought that the law was quite clear, and, as we see, it was sustained in this particular case.[Kennedy delivered this line as if he had just made an authoritative pronouncement that actually meant something.]

Let me move on. [A wise choice.]