How to Improve Judicial Confirmations

by Richard Davis, author of Electing Justice: Fixing the Supreme Court Nomination Process
(Originally published in the Nov. 3 edition of Roll Call)

For the third time in less than four months, the Senate is preparing for another Supreme Court confirmation, and of them, this one promises to be the most tension-filled. It is highly likely a large number of Democratic Senators will come away expressing frustration with the nominee’s non-answers, and an equal number of Republican Senators will probably proclaim that the Democrats have treated the nominee unfairly. Some observers may even question the value of the Senate’s role.

A Senate divided on the nature of its own role is doomed to fail in fulfilling a constitutional responsibility of advising and consenting. The prospect of a president dominating judicial selection without an effective Senate counterweight hardly fits the framers’ view of system checks and balances.

How to avoid this outcome? The Senate Judiciary Committee as a body, and Senators individually, can reform the process to enhance their role.

One reform concerns scheduling. The current approach of the committee is to question the nominee first and then turn to other witnesses, such as representatives of interest groups and former colleagues. What if the committee heard from these other witnesses first? Senators could use the concerns raised by that testimony in quizzing the nominee, rather than leaving any concerns raised in that part of the process largely unanswered.

Another reform would be to pool questions with selected committee members. This change would reduce stump speeches, interest group-driven questions, and the seeming growing length of the hearings. The responsibility of questioning could be rotated to offer the spotlight across the committee membership or, as in the Thomas nomination, preference given to Senators known for their prosecutorial skill. Obviously, this is a change most committee members would fight. Nevertheless, it could improve not only the Senate’s investigative role, but also the public’s interest in the hearings.

Another potential reform related to questioning is enhancing the use of follow-up questions. Too many Senators fail to engage the nominee in discussion. Instead, they merely read questions prepared by staff (or interest groups). Without follow-up questions, the nominee’s non-substantive answers can go unchallenged. Some Senators may feel inadequate pressing a nominee on constitutional law issues; this is another argument for the recommendation about pooling questions.

A controversial, but critical, reform has to do with the committee’s expectations of nominee answers. The norm should be that nominees answer questions about their personal views on issues. Senators typically ask such questions, but increasingly, they do not really expect answers. Yet, they should. Although in some cases the nominee may be honest in expressing uncertainty about opinions on various legal issues, such ambiguity cannot be an accurate reflection of the nominee’s thinking in other cases. Those views should be known to the public.
One may question the logic of putting too much stock in the nominee’s answers as a gauge of their future decision-making. Supreme Court justices, like others who develop opinions on issues, often change their minds over the course of their careers. It is highly unlikely in 1988 that Anthony Kennedy would have stated disagreement with the Bowers v. Hardwick case. And it wouldn’t have been because Kennedy was lying, but rather because his views were transformed by the time he faced the issue 15 years later as a Supreme Court justice.

Will the expression of certain views during confirmation hearings lock a justice into a position of imposing that view on future decisions? No. Consider retiring Justice Sandra Day O’Connor, who prior to her confirmation expressed her view that abortion was “something that is repugnant to me.” Despite this, Justice O’Connor later became a critical vote in court decisions that upheld a woman’s right to an abortion.

Acknowledging one’s personal views is not the same as promising a certain behavior once on the court. Nominees should never imply that they would vote a certain way on future cases. However, they can, and should, freely acknowledge that their personal views will affect the way they perceive the cases before them — as one of several factors, and not always the prevailing one.
Of course, stating this as an ideal is one thing; enforcing it is another. Nominees cannot be forced to reveal their personal views. That is the reason for a fourth recommendation: Senators need to be willing to punish a nominee with a negative vote when the nominee engages in deceptiveness or fails to answer questions. Many Senators have shied away from doing so because it seems an inadequate justification. But a Senator’s frustration is not the main concern here. It is the gravity with which nominees take the Senate’s confirmation role. It is hard to take seriously the Senate’s confirmation role when nominees who avoid answering questions are routinely confirmed anyway.

The nation benefits from knowing not only the legal qualifications of the individual, but also the way in which they view the world. The Supreme Court has the power to affect people’s lives, yet the judicial branch is unelected. In a democracy, the people, through their elected representatives, should have the right to examine candidates for the court, including their views on issues that will affect the lives of all citizens.

©Copyright 2005, Roll Call Inc.