Improving the Senate Judiciary Committee's Role in the Confirmation of Supreme Court Justices

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, No More Kabuki Confirmations, 95 A.B.A. J. 39 (2009); Stephen L. Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process (1994); Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process (2005); Ronald Dworkin, Justice Sotomayor: The Unjust Hearings, N.Y. Rev. of Books, Sept. 24, 2009; Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (2007); Brian Fitzpatrick, Confirmation ‘Kabuki’ Does No Justice, Politico, July 20, 2009.; Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919 (1995); Scott Lemieux, Can Kagan Win Over Liberals? American Prospect, May 12, 2010; John P. MacKenzie, The Trouble with Hearings, N. Y. Times, Sept. 24, 1991; Stuart Taylor, Jr., The Lessons of Bork, National Journal, July 22, 2009: David A. Yalof, Confirmation Obfuscation: Supreme Court Confirmation Politics in a Conservative Era, 44 Studies in Law, Pol. & Society 143 (2008).

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., The Supreme Court, Critical Nominations, and the Senate Confirmation Process, 55(3) J. Pol. 793 (1993).

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. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

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 Lee Epstein et al., The U.S. Supreme Court Justices Database, https://www.epstein.wustl.edu/justicesdata, accessed Sept. 22, 2021.

Figure 1

As the empirical analysis of historic confirmation hearings has shown, the hearings have served this purpose for quite some time.

Collins & Ringhand, supra note 6; Ringhand & Collins, supra note 6.

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, The Institutionalization of Supreme Court Confirmation Hearings, 41 Law & Soc. Inquiry 126 (2016).

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.

John Anthony Maltese, The Selling of Supreme Court Nominees (1995).

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.

Id.

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, The Role of Nominee Gender and Race at Supreme Court Confirmation Hearings, 52(4) Law & Soc. Rev. 871 (2018).

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.

Collins & Ringhand, supra note 6; Lori A. Ringhand & Paul M. Collins, Jr., Functioning Just Fine: The Unappreciated Value of the Supreme Court Confirmation Process, 61(4) Drake L. Rev. 1025 (2013).

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.

Id.

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 constitute our nation.

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, Umpires at Bat: On Integration and Legitimation, 24 Const. Comment. 701 (2007) and Kim McLane Wardlaw, Umpires, Empathy, and Activism: Lessons from Judge Cardozo, 85 Notre Dame L. Rev. 1629 (2009).

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, Brown v. Board of Education exemplified this. Brown was very controversial when first decided, and not just among overtly racist, pro-segregationists. For years, the legal merits of Brown were debated and discussed by law professors, elected officials, judges, and citizens. When asked about the case at his 1959 hearing, Potter Stewart evaded the issue the way most of today's nominee work to avoid discussing Roe v. Wade. But as the years passed, Brown became an iconic part of our shared constitutional understanding, and for decades senators and nominees of all ideological stripes fully and eagerly embraced it as correctly decided. Acceptance of Brown had become, effectively, a condition of confirmation. It has become part of our accepted understanding of the meaning of the Fourteenth Amendment.

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 Brown become constitutional powerhouses not because academic scholarship sheds new insights on the original public meaning of the Fourteenth Amendment,

For a debate about this issue, see Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995); Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213 (1991).

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 is a contemporary consensus for the process to reveal. The confirmation process cannot reveal a shared public understanding that does not in fact exist. In relation to more contested cases like Roe, consequently, the confirmation process plays a different role. For these cases, it provides a public forum in which electorally accountable actors continue to argue that their preferred understanding of contested constitutional cases and doctrines should be considered part of our consensus; it provides, in other words, a public forum in which to debate which constitutional meanings are “on” and “off” the constitutional wall.

See Jack Balkin, Wrong the Day It Was Decided: Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677 (2005).

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, End Confirmation Hearings for Supreme Court Nominees, USA Today, Oct. 11, 2020.

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., Neil Gorsuch and the Ginsburg Rules, 93 Chi.-Kent L. Rev. 475 (2018).

A

Nominees Should Answer More Questions

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.

Collins & Ringhand, supra note 6; Dion Farganis & Justin Wedeking, Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade (2014).

This is illustrated by utilizing a responsiveness ratio, which subtracts the percentage of questions each nominee refused to answer from the percentage of questions each nominee answered with a firm response. A positive response ratio indicates the nominee was more responsive as measured by this metric.

Data from Collins & Ringhand, supra note 22, updated by the authors.

Figure 2

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 Brown was correctly decided. This trend continued with Brett Kavanagh and Amy Coney Barrett, who was even less responsive than Gorsuch. In addition to dodging questions on a wide range of issues, including the right to privacy, bans on same-sex intimate relations, and gender discrimination, Barrett refused to provide her opinions on even factual matters. This included whether the president has the power to postpone federal elections and whether intimidating voters at the polls is illegal.

Paul M. Collins, Jr., Amy Coney Barrett Was Next-level Evasive,” N.Y. Daily News, Oct. 16 (2020).

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 Brown, they obscure that key component of the hearing process. It does not matter if nominees do this because of genuine disagreement with the case or because they are trying to avoid drawing difficult lines regarding which cases they will and will not opine on. Drawing and defending such lines may be challenging, but understanding where a nominee draws them is critical to senators’ ability to exercise their constitutional duty to advise and consent to a nomination. Moreover, as our earlier work shows, nominees since Frankfurt have been balancing these competing needs in just the way we describe; they have frequently refused to provide firm opinions on the most contested issues of their era, but have been willing to opine on things considered settled by their contemporaries.

Collins & Ringhand, supra note 2; Ringhand & Collins, supra note 22.

This practice of affirming canonical cases and issues goes beyond Brown. For decades, nominees have routinely accepted cases affirming a core right to personal privacy, the legitimacy of at least some substantive due process rights, the expansion of First Amendment protections beyond purely political speech, and heightened review under the Equal Protection Clause for gender discrimination. More recent nominees also have affirmed the core holding of District of Columbia v. Heller, finding that the Second Amendment includes a personal right to possess at least some firearms for purposes of home protection.

Collins & Ringhand, supra note 6.

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.

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, A Tournament of Judges? 92 Cal. L. Rev. 299 (2004); Glenn Harlan Reynolds, Taking Advice Seriously: An Immodest Proposal for Reforming the Confirmation Process, 65 S. Cal. L. Rev. 1572 (1992).

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.