Supreme Court nomination hearings in perspective

  • 3 September 2018
  • NormanL

The Senate Judiciary Committee begins its hearings on Brett Kavanaugh's nomination to the U.S. Supreme Court this week. While it's almost guaranteed there will be lots of grandstanding and rhetorical gymnastics from those opposed to Kavanaugh, how have confirmation hearings traditonally worked? This item from the SCOTUSblog gives us some historical insights:

Perhaps the most important lesson of history is that the content and conduct of confirmation hearings have changed over time. Although we think of nominees’ testimony as the centerpiece of the confirmation process, for most of the country’s history, Supreme Court nominees did not testify publicly. Justice Harlan Fiske Stone appeared before the committee in 1925 to address allegations related to a political scandal, and Justices Felix Frankfurter (1939) and Robert Jackson (1941) also testified. But it was not until 1955, with the nomination of John Marshall Harlan, that the current practice of routine appearances began.

Driving the hearings was segregationist anger over the Brown v. Board of Education ruling that held "Jim Crow-era racial segregation of schools unconstitutional."

While the tenor and content of confirmation hearings has varied considerably in the intervening 60 years, since 2000, hearings have taken a much more pronounced turn for the worse:

...beginning with Chief Justice John Roberts’ hearing (the first one after Breyer’s), nominees have been less consistently willing to have meaningful discussions about the law. Most notably, Ringhand and Collins’ data show that both Roberts and Justice Neil Gorsuch gave firm answers significantly less often than they refused to answer. Gorsuch even hesitated before eventually acknowledging, circuitously, that Brown v. Board of Education was rightly decided.

Such reticence over even the most well-established precedents is, in my view, highly problematic. A Supreme Court nominee should be willing to share his or her most basic constitutional commitments with the senators. That Brown was correctly decided should not be controversial in 2017 or 2018. If the nominee cannot endorse the outcome of that iconic case, the senators – not to mention the American people – need to know that before determining whether the nominee should serve for life on the nation’s highest court. Without such conversations, we suffer a significant loss to a candid and robust public discussion of constitutional values, a discussion that we need now more than ever.

There are numerous political reasons for not expounding on one's judicial philosophy before a gathering of Senators, many of whom will already have declared how they will vote on a nominee. Philosophical expostions may make the law professor crowd content, but they serve-up red meat to the interest groups on both sides of a nomination. Nuances are boiled away and the remains hammered into attack ads that bear only tangential resemblance to the original discussion.

In short: politics makes nominees wary of saying too much, too clearly. If we could take the politics out of nominations, then there would be no problem with learned discources on the law. But that's not going to happen. So expect more vague responses from every future Supreme Court nominee. It's politics that make them do it.