The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Hearings are coming: How to restore the lost confirmation


Winter is coming. No wait. I mean hearings are coming-and soon. Like it or not, the day is fast approaching when the Senate will again hold hearings on a nominee to take the seat on the Supreme Court vacated by the death of Justice Antonin Scalia. And yet, in recent decades, these hearings have accomplished very little and failed to meaningfully assist the Senate in performing its Advice and Consent role.

In a previous Weekly Standard article, The Next Justices (written before Justice Scalie'a death), Josh Blackman and I proposed criteria by which a Republican president should select a nominee. Now, in a piece in National Affairs entitled, Restoring the Lost Confirmation, Josh and I trace the relatively modern origins of Senate confirmation hearings and the decline in their meaningfulness over the past twenty years. While we share the commonly-held view that traces this decline to the failed nomination of Robert Bork to the Supreme Court, we disagree with the conventional wisdom about what happened at the Bork hearings that has led to the demise of meaningful Senate hearings.

What went wrong for Robert Bork was that his "original intent" approach appeared to threaten too many past "precedents" and future results that the Democratic majority in the Senate cared deeply about. (Had the Republicans enjoyed a majority in the Senate - as they had when Justice Scalia was confirmed overwhelmingly - the hearings might have gone quite differently; to be confirmed, Bork still needed to convince a sufficient number of Democrats.) From that debacle, candidates have learned to adopt three rhetorical "moves" that allow them to skate away from questions about results. These moves have rendered the confirmation hearing all but pointless.

As we describe at length, these three moves consist of

  1. Pledge one's fealty to the text, and even original meaning, of the Constitution, as well as to the principles underlying the text;
  2. Answer all questions about "the Constitution" with reference to existing Supreme Court decisions and "accept" these as "precedents";
  3. Deflect all discussion of controversial issues by refusing to opine on any matter that may come before the Court.

We explain how, working together, these three moves allow nominees to speak in platitudes, display their impressive knowledge of and facility with case law, while revealing little that will provide ammunition for potential opponents. At the heart of the problem is the acceptance by the Senators, as well as press and public, of the idea that the only thing that matters is not legal reasoning but results. But when skilfully played, these three moves protect nominees from tipping their hands on possible results, essentially making the hearings about nothing.

We then suggest ways that individual senators can restore the lost confirmation hearings by changing the types of questions they ask. In short, they should focus on reasoning, not results; and the meaning of clauses, not cases. Above all, nominees should not be allowed to respond to questions by reciting Supreme Court decisions as "precedents," since they can undermine or refuse to follow these decisions after their confirmation. We maintain that:

By focusing on the meaning of the clauses of the Constitution, rather than the cases of the Supreme Court, however, a handful of senators could steer the hearings toward the solid ground of legal reasoning rather than the shifting swamps of legal realism. [snip]

Would it be unfair to ask nominees to the Supreme Court what they believe the Constitution means and why they believe it? Such questions would certainly be challenging. But why should we not expect judicial nominees to have studied the Constitution before they are given lifetime tenure to interpret and apply it? And repeating the catechism of previous Supreme Court decisions is not the same thing as opining on the meaning of the Constitution itself - unless you assume, of course, that the Constitution really is only what the Supreme Court says it is and nothing more. If confirmed, nominees will get to vote whether they think these previously decided cases were rightly decided. It is essential to understand their knowledge and perspective on this history before the Senate elevates them to the High Court.

Inquiring into clauses not cases would also require senators to learn about the original meaning of the Constitution. Beyond hearing the nominee's answers, it would be enlightening to hear what the members of the Judiciary Committee think about these topics. Such a hearing would not only be entertaining, but would also be informative and educational.

Naturally, I cannot reproduce our entire narrative of the practice of holding confirmation hearings, our diagnosis of the source of their current vacuity, or our proposed reforms in this post. For these, you need to click through and read the whole thing. But remember: