Monday, January 9, 2012

Don't Count on Candor From Supreme Court Nominees

      When John Marshall Harlan appeared before the Senate Judiciary Committee in 1955 for confirmation to the Supreme Court, Sen. James Eastland, the race-baiting Mississippi Democrat, wanted to ask about the court’s still new school desegregation decision. But no matter how Eastland phrased the question, Harlan was giving no hints about his views on the ruling. “I should not be asked to forecast how I will decide cases when they arise before me,” Harlan said.
      Two years later, William J. Brennan Jr. was pressed for his views on the legal status of the Communist Party from Sen. Joseph McCarthy, the red-baiting Wisconsin Republican. Brennan — like Harlan before him, already serving on the court under a recess appointment — similarly resisted being pinned down. “I simply cannot venture any comment whatever that touches upon any matter pending before the court,” Brennan said.
      The Harlan and Brennan hearings, recalled in a new law journal article by political scientists Dion Farganis and Justin Wedeking, mark the beginning of the modern Supreme Court confirmation process. Not until the 1950s did it become standard practice for Supreme Court nominees to appear in person before the Senate Judiciary Committee for a confirmation hearing. Indeed, the Senate held no committee hearings at all until the nomination of Louis Brandeis in 1916 — and Brandeis did not himself testify in a hearing that featured sharp criticism of his progressive views.
      Today, the Supreme Court confirmation process is widely criticized — indeed, mocked — as a meaningless charade. Back when he chaired the Senate Judiciary Committee, Joe Biden famously described confirmation hearings as “a Kabuki dance.” In the critics’ view, every nominee since Robert Bork’s ill-fated candor in 1987 has taken shelter in judicial ethics to turn aside any effort to learn his or her views on legal issues. “No hints, no forecasts, no previews,” Ruth Bader Ginsburg said in her opening statement in 1993.
      The critique seems to assume some golden age of Supreme Court confirmations when nominees answered senators’ questions freely, giving them all the information they needed for knowledgeable votes. Farganis, a professor at Elon University in North Carolina, and Wedeking, a professor at the University of Kentucky, demonstrate in their article in Law and Society Review that the idea of the once fully forthcoming confirmation hearing is largely myth — some truth to it, but no more than some.
      The researchers took on the monumental task of reading and encoding all of the confirmation hearings from Harlan through the most recent: Bush nominees John G. Roberts Jr. and Samuel A. Alito Jr. and Obama nominees Sonia Sotomayor and Elena Kagan. Nominees’ answers were categorized and then counted as “fully forthcoming,” “qualified,” “not forthcoming,” or non-responsive (“non-answer”).
      The numbers confirm some decline in candor since the Bork hearings, though the very next nominee — Anthony M. Kennedy — was among the most forthcoming. But Farganis and Wedeking attribute the relatively slight decline in candor to another, even stronger trend: the increasing number of questions from senators touching on the nominees’ personal views.
      Beyond the researchers’ numbers, the senators’ increased inquisitiveness can be seen quite dramatically in a law library with the printed volumes of confirmation hearings. The Harlan and Brennan hearings are printed along with four others in a single volume. The Bork hearings mark the beginning of multi-volume hearings. Bork’s spans seven volumes; two decades later, Roberts’s confirmation hearing fills eight volumes, Alito’s 10.
      Some of the hearing records’ length stems from outside witnesses, but the nominee now routinely spends more time in the witness chair than in the past. The hearing for Charles Whittaker in 1957 was so perfunctory that a former Supreme Court law clerk, the future chief justice William H. Rehnquist, was prompted to write a law review article critical of the confirmation process. Byron R. White was asked six, non-challenging questions in 1962.
      The court — and the confirmation process — became more politicized in the 1960s. Senators asked more and more questions, more and more confrontational — arguably fulfilling their constitutional duty to determine whether to render their “advice and consent” to the president’s choice. Equally, however, the nominee has some obligation to the judicial oath he or she hopes to take not to prejudge the issues that are to come before the court. The Supreme Court nominee’s pledge card is necessarily limited to a promise to endeavor to decide cases fairly and impartially on the basis of the evidence and the law.
      This restriction does not mean that the confirmation hearings are useless. No one reviewing the confirmation testimony of Ginsburg or Stephen G. Breyer could be surprised by their moderately liberal records on the court. Both, for example, strongly endorsed the existing constitutional precedents on abortion rights. By contrast, the qualified responses that Roberts and Alito gave on Roe v. Wade foreshadowed the position they took only one term later to uphold a federal ban on so-called partial birth abortions in a decision that undercut one of Roe’s major premises.
      As with democratic government itself, the process is not perfect. But the process gives senators enough information to make a meaningful choice whether to confirm a nominee or not. Senators can probe; nominees can duck. And the justice who seemingly departs from his or her confirmation statements can at least be held accountable in the court of public opinion. Critics who find this unsatisfactory yearn for some ideal that cannot exist — and never has.


  1. I'm not a fan of Bork, but his comment on the confirmation process a few years after his own was insightful, something to the effect that, "There are only two people in the United States who have no opinion on Roe v. Wade, and BOTH are now on the Supreme Court. So now you either have to be a liar or an idiot to be confirmed."