My new Confirmation Tales post might well be my favorite so far. I recount how I drafted for my boss Senator Orrin Hatch a hypothetical question to pose to Ruth Bader Ginsburg at her confirmation hearing—a hypothetical that in fact reflected her own record of having zero black employees over her 13 years as a D.C. Circuit judge. I think that you will find that the story has some intriguing twists and turns on its way to a surprise ending. An excerpt:

On the morning of July 20, 1993, about thirty minutes before Ginsburg’s hearing was set to begin, Hatch’s senior lawyer on the committee and I met with him to go over the questions we had drafted for him. We told Hatch about Ginsburg’s hiring record and directed him to the hypothetical question. As he read it, a look of deep concern crossed his face.
“What if she says yes?,” he worried.
That’s right: Rather than welcome the prospect that a “yes” answer from Ginsburg would help to expose the folly of the “inexorable zero” concept, Hatch was so committed to Ginsburg’s smooth confirmation that he was concerned that Ginsburg would inadvertently impugn herself as racist.
My colleague quickly assured Hatch that Ginsburg wouldn’t say yes. Thinking to myself “Of course she will,” I bit my tongue.

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