Scholars, politicians, and legal commentators from across the ideological spectrum appear to agree that the process used by the Senate Judiciary Committee to advise and consent to the appointment of Supreme Court justices is badly broken and needs to be fixed.
See, e.g., Richard Brust,
This essay attempts to remedy that problem by explicitly considering changes to the Senate confirmation process in light of the role the Supreme Court plays in our governing system. In doing so, it argues that the hearings held before the Senate Judiciary Committee, when done properly, provide an important platform for debating, revealing, and ratifying the contemporary public meaning of the Constitution. Efforts to change the confirmation process should recognize and advance this goal, not hinder or hide it.
We begin with a historic survey of the Senate's role in the confirmation of Supreme Court justices. As we demonstrate, the Senate has long played a robust role in shaping the direction of the Supreme Court, and intermittent eras of intense polarization around the process are nothing new. We then discuss how the process used by the Senate Judiciary Committee evolved into one in which the Senate's role in guiding the ideological direction of the Supreme Court became more visible and democratic, which we believe is a positive and indeed critical development. Finally, we argue that a properly functioning confirmation process is one which ratifies as settled previously contested constitutional decisions made by the high court. We close by making a few suggestions as to how to best restructure the hearings to enable them to better play this positive, democracy-affirming role.
Presidents and senators have always recognized that who sits on the Supreme Court matters, and have often disagreed about who those people should be. These conflicts are almost as old as the Constitution itself. In 1795, President George Washington nominated John Rutledge to serve as the nation's second Chief Justice, but when Rutledge's name was submitted to the Senate, the senators refused to confirm him. And they did so for a very particular reason: Rutledge had been a vocal opponent of the treaty John Jay had negotiated with the British to resolve issues lingering after the Revolutionary War. The “Jay Treaty” got tangled up with a growing battle in the United States between the Federalists (who wanted closer ties with Britain) and the Jeffersonians (who wanted closer ties with France). Some Federalist senators even considered opposition to the Jay Treaty to be an act of sedition. Rutledge's outspoken (and often impolitic) opposition to the treaty infuriated enough Federalist senators to doom his nomination.
Peter S. Ruckman, Jr.,
Later presidents had even more difficulties. In 1800, the lame-duck Federalists unabashedly protected the federal courts from Thomas Jefferson's ascendant Democratic-Republican party by eliminating a Supreme Court seat, doubling the number of federal circuit courts, and creating 16 new federal judgeships.
The rush may explain why they failed to deliver William Marbury's commission. J
Clearly, conflicts between presidents and senators about Supreme Court appointments have deep historical roots. Figure 1 reports the number of failed nominations throughout the nation's history, including those withdrawn, rejected by the Senate, failed because of Senate inaction, and instances in which the nominee was confirmed, but did not serve.
The data are derived from L
As the empirical analysis of historic confirmation hearings has shown, the hearings have served this purpose for quite some time.
C Lori A. Ringhand,
Subsequent nominees also have faced hostile and substantive questioning from the Senate Judiciary Committee. Abe Fortas was facing serious ethics charges when nominated by President Lyndon B. Johnson to be Chief Justice, but his confirmation hearing barely touched on those issues; instead, it was a weeklong grilling about the merits of the liberal decisions being issued by the Warren Court. William Brennan, like Frankfurter, was interrogated as a suspected communist sympathizer, and Thurgood Marshall was exposed to a torrent of barely disguised racism by “Dixiecrat” senators like Strom Thurmond.
Paul M. Collins, Jr. & Lori A. Ringhand,
What then has changed? Why are so many people from across the ideological spectrum expressing concern about how the process is functioning? In part, we suspect, this is historic myopia. The white-hot confirmation battles of recent years seem unique if seen through the prism of just the past few decades. Constantly repeated media narratives framing the 1986 rejection of Robert Bork as the pivotal moment when a previously apolitical process became politicized are historically inaccurate, but also have had tremendous influence on public perceptions of the confirmation process. The relatively uncontroversial confirmations of Justice Steven Breyer and Ruth Bader Ginsburg in the early 1990s, along with the 11-year gap between 1994 and 2005 when there were no Supreme Court vacancies (and therefore no confirmation hearings) have likewise contributed to a collective forgetfulness about the intense conflicts that have periodically accompanied the process throughout our history.
Ultimately, though, we suspect there is a more fundamental reason for current perceptions of the confirmation process. As our political community has expanded and become more diverse, more and more people are demanding that their perspective be heard and their concerns considered, in politics generally but also in the selection of Supreme Court justices. Disputes about nominees that used to play out behind closed doors now occur under the full glare of 24-hour news coverage, social media, and the #MeToo movement. All of which, we posit, has made the process both more democratic and more controversial.
The democratization of the confirmation process began with Hugo Black. Black was nominated by President Franklin D. Roosevelt in 1937, two years before Felix Frankfurter. Black was a sitting senator, and was confirmed quickly—just five days after his nomination was announced. But there was a problem. It turned out his fellow Senators knew, but did not publicly disclose, that Black had apparently accepted and never revoked a life-long membership in the Ku Klux Klan.
J
The fact that the Senate knew this and did not vet the issue publicly before rushing through Black's confirmation became very controversial. The journalist who broke the story won a Pulitzer Prize for his coverage of the issue, and both President Roosevelt and Justice Black himself ultimately were forced to give public statements apologizing and denouncing the Klan.
Collins & Ringhand,
As the process opened up, two notable things happened. First, the confirmation process came to include more diverse individuals. The nominations of Felix Frankfurter, Thurgood Marshall, Sandra Day O’Connor, Clarence Thomas, and Sonia Sotomayor would have been unthinkable in 1789, as would the idea that a Supreme Court nominee would be interrogated by Senators Hiram Fong, Diane Feinstein, Carol Moseley-Braun, Mazie Hirono, or Cory Booker.
Christina L Boyd, Paul M. Collins, Jr., & Lori A. Ringhand,
This expanded diversity also evidences a second change: an expansion of the substantive issues raised at the confirmation hearings. As our national understanding of who is and is not a member of our political community grows, the Senate, the Court, and the President must defend their political choices to a wider array of people with broader and more diverse interests. More people are taking a seat at the democratic table, and demanding that their concerns be considered in all aspects of government, including decisions about who sits on the Supreme Court.
This diversity of interests is reflected in the types of questions nominees are asked at their hearings. Supreme Court nominees have always been asked about constitutional issues impacting the interests of the political elite, whether it be President Truman's position on seizing private property, the Senate's opinion of judicially-mandated racial desegregation, or President Nixon's opinions on executive privilege. As our work shows, the issues addressed at the hearings have changed as the scope of conflict has expanded to include more diverse interests, but the underlying dynamic—questioning nominees on the issues that matter to members of the political community—has not.
C
This dynamic is driven by both formal and informal changes to our governing system. Senators, who for more than 100 years were elected by state legislatures, became directly accountable to voters in 1913. This direct electoral accountability ensured that Senators would take a wider array of interests into account in all of their political decisions, including decisions about Supreme Court nominations. There have also been formal expansions to the franchise itself. Women officially won the right to vote in the 1920s, and the right to vote for many Black Americans became a reality only in 1965, with the passage and subsequent enforcement of the Voting Rights Act. These formal changes were accompanied by more informal reallocations of political power as well. Over the decades, women, racial and religious minorities, gay individuals, transgender people, and those with diverse gender identities formed social movements and claimed their fair share of political power. All of those interests are now reflected in the Supreme Court confirmation process.
When it functions well, the Supreme Court confirmation process is one of the mechanisms through which this expanded and empowered electorate impress their interests into our collective constitutional narrative. The Constitution may be unchanging, but its interpretation is always contested. As we have explained at length, a properly functioning Supreme Court confirmation process is one way in which those contested interpretations are over time accepted or rejected.
Anna Batta et al., 2012.
This type of indirect political accountability is an important way in which judicial independence and judicial accountability are balanced in our system. Almost by definition, cases with simple legal answers do not make it to the Supreme Court. The contemporary Court usually hears fewer than seventy cases a year. These almost always are cases in which very able judges across the country have disagreed about the correct answer to the legal question presented. In constitutional cases, they often are disputes involving some of the most open-textured language found in the Bill of Rights, such as “equal protection,” “freedom of speech,” and “liberty.” That means that the Justices deciding these cases must exercise not just sharp legal reasoning but also sound legal judgment. They must take the outcomes rendered possible by tools of constitutional interpretation and mold them into a coherent body of law consistent with our most fundamental constitutional commitments.
Rather than bemoan this exercise of judicial discretion, or pretend that application of the “correct” interpretive methodologies can eliminate it, we should build a confirmation process that makes it work better. The Supreme Court confirmation process, after all, is one of the few moments in our collective civic life when we as a nation look directly at our Constitution and ask: “What do the promises and dreams embodied in this great document mean to us today?” By forcing us to address that question squarely, and together, confirmation debates are one of the ways in which we ensure the Constitution continues to
This is not the way Americans usually talk about the confirmation process. Our public discussion of the Supreme Court, and by extension our discussion about the confirmation process, has for far too long been dominated by a false choice, pitting “umpires” against “activists.” “Umpires,” in this story, are those justices who simply use the tools of legal craft to discover “correct” legal answers buried deeply within the mysteries of constitutional history, text, or philosophy. “Activists” on the other hand, are those justices who inappropriately impose their “personal preferences” in lieu of constitutional law.
For interesting discussions of this analogy, see Neil S. Siegel,
But as any first-year law student knows, constitutional decision making, particularly at the U.S. Supreme Court, is a messy and uncertain enterprise that rarely reflects either of these caricatures. Supreme Court justices certainly use the tools of legal reasoning, including evaluating arguments from precedent, principle, text, and history. But in hard cases—again, the types of cases that most frequently reach the Supreme Court—these purely legal tools rarely generate single and clearly correct answers. Consequently, the justices in such cases also must exercise judgment; they must engage in acts of discretion and reasoned choice.
The affirmation (or rejection) of certain constitutional decisions or doctrines by nominees at confirmation hearings brings public input and accountability to this process. For decades,
The Supreme Court confirmation process did not create this understanding, but it did provide a democratically-validated forum for its recognition. That is the point. Shared constitutional understandings revealed through the confirmation process carry more democratic legitimacy than do those same constitutional choices when initially made by the justices. Constitutional choices recognized and affirmed as key components of our constitutional consensus deserve to be given weight in constitutional argument for that reason; they are the validation, over time and through a democratic process, of broad constitutional consensus about what had once been a contested constitutional proposition. Thus, cases like For a debate about this issue, see Michael W. McConnell,
There are limits to this process, of course, and our claims here are relatively modest. The ability of the confirmation process to play this affirming role is limited to the public discussion and validation of cases and doctrines on which there
Additionally, the constitutional choices validated through the confirmation process do not themselves resolve for all time disputes about how future courts should decide similar cases. Future generations can unsettle current agreements, even as they settle others—the process is continuing, not stagnate. But when life-tenured justices interpret a constitutional text as old and opaque as ours, it matters that the people of today have accepted a particular interpretation of that text, and that nominees have affirmed that interpretation as part of their confirmation process.
None of this means that the process is working as well as it should. Unlike some commentators, we do not attribute this failing to increased public participation itself.
Ilya Shapiro,
In our view, this indirect accountably—which is the primary value in having Supreme Court justices nominated and confirmed by political actors—is increasingly in jeopardy. Recent nominees have become reluctant to answer questions even about cases and issues considered by most people to be well within our constitutional consensus;
Lori A. Ringhand, & Paul M. Collins Jr., Christopher N. Krewson & Jean R. Schroedel, Kevin J. McMahon,
First, nominees should answer more questions. As shown in Figure 2, most nominees testifying before the Senate Judiciary Committee in the last 50 years have, contrary to common belief, been relatively responsive.
C Data from Collins & Ringhand,
As Figure 2 makes clear, most nominees have provided their opinions on concrete constitutional ideas and cases more often than they have refused to comment on those ideas and cases. However, this began to change in 2005, when John Roberts invoked the privilege of avoiding answering questions far more often than he provided firm answers to questions. Elena Kagan answered slightly fewer questions than she refused to answer in 2010, while Neil Gorsuch, President Donald Trump's first Supreme Court nominee, was the least responsive Supreme Court nominee in almost 50 years. More critically, Gorsuch was reluctant to provide firm answers about even our most uncontested constitutional cases, to the extent of evading questions early in his hearing about whether Paul M. Collins, Jr.,
This is troubling. As discussed above, a key value in a public confirmation process is that the nominees reveal through their responses which issues and cases they think are and are not settled as a matter of current constitutional law. When nominees avoid answering questions about even iconic cases like C
This practice of affirming canonical cases and issues goes beyond C
Given this, senators could improve the confirmation process by embracing with more confidence the substantive component of their inquisitorial role. Substantive debates about what is and is not part of our constitutional consensus, arguments about whether currently contested constitutional choices should become considered part of that consensus, and nominee ratification of choices firmly within that consensus are all key components of a well-functioning confirmation process. Nominees and senators alike should embrace this, and work to ensure that the hearings function as forums through which to engage a nominee's vision of and commitment to the public's core constitutional commitments.
To be clear, this decidedly does not mean that the confirmation process needs to (or could) become a seminar in constitutional law. Democratic engagement should not require citizens to become lay-lawyers. Rather, a serious constitutional discussion in this context is one which acknowledges, even embraces, constitutional uncertainty and the subsequent necessity of judicial discretion. Supreme Court justices are not umpires. They are sophisticated constitutional lawyers whose constitutional choices are constrained but not entirely dictated by a well-accepted set of legal reasoning tools. A confirmation discourse recognizing this fact would better enable the public to fulfill its critical role in shaping the constitutional consensus under which we as a society agree to be governed.
The Senate Judiciary Committee also could improve the confirmation process by developing a standardized process to address potentially disqualifying allegations of personal misconduct. Like the essentially political nature of the process, allegations of personal misconduct are not new to the hearings, and the Senate Judiciary Committee has long (and appropriately) considered them a valid topic of investigation. Serious allegations of financial misconduct were raised in 1795 against Washington nominee John Rutledge (for failure to pay personal debts); in 1873 against Grant nominee George Williams (for using public money for private gain); and in 1968 against Johnson nominee Abe Fortas (for taking bribes). More recently, William Rehnquist (Chief Justice) and Douglas Ginsburg were both accused of inappropriate drug use, Rehnquist in regard to a decade long addiction to prescription pain killers and D. Ginsburg in relation to smoking marijuana with students while a professor at Harvard Law School.
Irvin Molotsky, W
In fact, a study found that 23 of the 80 nominations between 1877–1994 (the scope of the data studied) involved accusations of personal misconduct.
Charles M. Cameron & Jeffrey A Segal,
The confirmation hearings of Clarence Thomas and Brett Kavanagh show how little progress has been made on this issue. The two stories are strikingly similar. In 1991, University of Oklahoma law professor Anita Hill reported to the FBI that she had been sexually harassed by Thomas when he was her boss at two different federal agencies. Hill did not want to go public with the allegation, but neither did she want a person she considered unfit to serve on the Court to be confirmed without her accusation being vetted by the Senate Judiciary Committee. When the accusation was leaked to the press, the Committee had no plan in place about how to proceed. They argued about whether Hill would appear, whether Thomas would be present if she did, whether Thomas would be recalled to reply to her comments, whether the testimony of either or both would be open or closed, and even who should testify first.
David A Kaplan,
The resulting hearing presented the grim debacle of an exclusively white and male panel of U.S. Senators clumsily navigating fault lines of race, class, and gender that they did not understand, or perhaps even see. Hill was asked to repeatedly recount the most salacious details of her story. She was grilled on why she hadn’t come forward earlier, why she hadn’t reported the incidents at the time they occurred, why she followed Thomas when he moved to a second agency, and why she had continued to say nice things about him in public and communicate with him on occasion. The Judiciary Committee failed to call additional witnesses who might have collaborated Hill's story, leaving the senators—and the public—with nothing to base their conclusions on but two contradictory stories about an appalling series of events. Outside the hearing room, Hill was accused of being vengeful, scorned, politically motivated, and mentally ill.
D Julia Jacobs,
Twenty-seven years later, little had changed. Professor Christine Blasey Ford approached her senator, Judiciary Committee Member Diane Feinstein (D-CA), with a story of being sexually assaulted by a teenage Brett Kavanaugh when they were both high school students in suburban Washington, D.C.
Matthew Choi,
This is a travesty. Senators cannot make responsible decisions about the procedures that should govern allegations of disqualifying personal misconduct on the fly, when presented with such allegation in the midst of a high-stakes nomination. They absolutely must develop in advance procedures that will govern this situation, regardless of which party controls the Senate or the presidency. We understand this will not be easy, and that there are a host of issues senators will have to grapple with. We expect senators will disagree about what types of allegations constitute disqualifying misconduct, how supported an accusation must be to warrant further investigation, at what stage in an investigatory process such allegations will be disclosed to the public, whether and when additional witnesses will be called to testify, and whether that testimony should be conducted in open or closed session.
Fortunately, the Senate Judiciary Committee need not build new procedures from scratch. In the wake of allegations that a federal judge had engaged in harassment and other sexual misconduct over decades without consequence to him, the Federal Judicial Conference of the United States approved changes to the Code of Conduct for federal judges.
Senate Rule XXVI offers another foundation on which better procedures can be built. Rule XXVI governs when Senate Judiciary Committee hearings can be closed to the public.
S. D
Third, and most far-reaching, the Senate Judiciary Committee, other elected officials and public leaders, and the sitting justices themselves should embrace one of the many existing proposals to restrict the terms of Supreme Court justices to 18 years.
Steven G. Calabresi & James Lindgren, Paul M. Collins, Jr. & Lori A. Ringhand,
Staggered terms would advance the democracy-enhancing process described above. By tying appointments more predictably to the results of rolling elections, this system would reduce the intensity of the current hearing environment while increasing the high court's indirect relationship to public opinion. The Court's views in such a system would more coherently reflect the choices of the American people over time, rather than the vagaries of chance and partisan manipulation, especially when that manipulation ties Supreme Court confirmations to the preferences of institutional actors who do not themselves enjoy majoritarian support. This system also would have the additional benefit of making it less likely that individual justices serve for so long that they can become out of touch with the nation they help lead. Numerous studies, for example, have found that justices over time “drift” from the ideological preferences of the governing coalition that appointed them.
Lee Epstein et al.,
There are various ways to adopt 18-year terms. In addition to statutory and constitutional reforms, nominees can be asked at their confirmation hearing to affirm that if the practice of stepping down after serving 18 years becomes the norm, that they will do so as well.
Calabresi & Lindgren,
In a system like ours, which gives Supreme Court justices tremendous power, the confirmation process is an essential check on how that power is exercised. Our founders almost certainly saw this indirect control over the Court as a feature, not a bug. The entire structure of the federal government is one of checks and balances. By putting the Supreme Court appointment process in the hands of elected officials, they ensured that the Court is part of this structure, rather than outside it. The Court has the power to check the actions of the political branches through its decisions, but its power is in turn checked by an appointments process that gives elected officials the responsibility to vet its members and thereby shape the direction of constitutional decision-making over time.
With this more fully articulated understanding of the actual value of the Supreme Court confirmation process firmly in hand, we have sketched out above our thoughts on what would and would not improve the current process. Most importantly, the confirmation process must, contrary to some reform proposals
Stephen Choi & Mitu Gulati,
It is not a coincidence that the opening up of the confirmation process coincided with the democratic awakening of an expanded electorate. As more and different interests claim their right to a constitutional voice, confining the selection of Supreme Court justices to a small group of senators working behind closed doors becomes untenable. While this development undoubtedly brings with it a certain degree of messiness, it also represents an expansion of the democratic expectations of women, minorities, and other previously underrepresented members of our society. As such, it is a development we should celebrate, not bemoan.