Judicial Nominations

A Qualified Defense of Supreme Court Confirmation Hearings

They have serious flaws, many of which are on display this week. But we are still better off with them than without them.


Judge Amy Coney Barrett testifies at her Senate confirmation hearing.


While there is deep disagreement about the merits of Amy Coney Barrett's nomination, commentators across the political spectrum seem united in decrying the confirmation hearings as ridiculous,  a "circus," or even "verging on the absurd."

Like many other observers, I thought a lot of what was said in the hearings was lame. Senators from both parties engaged in worthless grandstanding, and many of the nominee's answers were evasive, at best. The same, I think, was often true of other recent SCOTUS nominees. And there was no shortage of dumb questions (such as this one by Sen. Lindsey Graham), and even ridiculous conspiracy-mongering.

My George Mason University colleague Adam White has a thoughtful Washington Post op ed outlining what confirmation hearings can potentially achieve. But even he likely realizes that the sordid reality is far from that ideal.

But, even if they remain largely as they are, the hearings serve useful purposes, despite their severe flaws.  Requiring the nominee to run this gauntlet deters the nomination of cronies and hacks who aren't knowledgeable and smart enough to avoid looking like idiots on national TV, as well as those who lack basic knowledge of constitutional law issues. As White puts it, " the process deters palpably unqualified nominations. Presidents know they cannot nominate a judge who cannot convey a basic understanding of the law in response to senators' questions."

The confirmation process also creates opportunities for opposing party senators (and others) to dig for possible ethical and other flaws in the nominee's background. This too helps deter some of the worst potential nominees. And it's part of the reason why I oppose the rushing of the process undertaken by the  GOP  this case.

While few if any of the people nominated in recent years are ones I would have chosen if it were up to me, we could easily do much worse. The confirmation process—including the hearings—is part of what helps screen out worse nominees.

I have significant disagreements with, and reservations about, all of the justices confirmed during my professional lifetime. But all are highly capable jurists, and none have turned out to be simply crude minions of whichever president or party secured their appointment. In the cases of Neil Gorsuch and Sonia Sotomayor, they have even turned out to be significantly better in some respects than I expected at the time they were nominated.

In addition, the use of outside expert witnesses for and against the nominee allows those witnesses (and the senators) to call attention to important legal issues that otherwise might not get as much air time normally. I saw a small example of this myself, when I testified at then-Judge Sonia Sotomayor's confirmation hearing in 2009, becoming perhaps the first witness at such a hearing to focus on constitutional property rights issues. That I was the person testifying mattered very little. But it was notable that these important questions (eminent domain and asset forfeiture) got some national attention they might not otherwise have received. More recent confirmation hearings have featured insightful testimony on issues such as executive power, and the strengths and weaknesses of originalism and living constitutionalism.

Only a small minority of voters are likely to watch those parts of the hearings that feature outside witnesses (as opposed to the nominee herself). But that minority is still many more people than would pay attention to most such constitutional issues at other times.

And, while most of the questions and answers in confirmation hearings have little value, occasionally they do elicit some useful information. Just this week, Barrett's answers to various senators' questions provided some helpful insight on her likely approach to the Obamacare severability case currently before the Supreme Court.

Best of all, when I was a witness at the Sotomayor hearing in 2009, I got to meet former Cy Young-award winning major league pitcher David Cone (who was there to testify in support of Sotomayor, due to his involvement in the  Major League Baseball Players Association, which was the winning party in one of her best-known rulings as a district judge).  We had an interesting conversation about sabermetrics –  the quantitative analysis of baseball performance and strategy. Contrary to the stereotype of professional athletes as dumb jocks who disdain anything "nerdy," Cone said he thought sabermetrics was extremely useful to players, and correctly predicted that the biggest future gains were likely to emerge from improvements in the analysis of defensive performance (which is less well measured than offense and pitching).

OK, perhaps my meeting with Cone isn't really much of a reason to keep confirmation hearings! But, as described above, the hearings can serve the public interest, as well as that of witnesses. As flawed as the current system is, abolishing the hearings would probably make things worse, rather than better.

NEXT: The Naturalness of ACB

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  1. These generate lawyer jobs, and waste a lot of time. They are worthless exercises in lawyer rent seeking. They are a type of stealing of tax money.

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  2. Yeah, pat yourself on the back professor. Would you like to bet that one day after you testified, anyone watching could recall what you said, if they could even recall seeing you testify?

  3. when I was a witness at the Sotomayor hearing in 2009, I got to meet former Cy Young-award winning major league pitcher David Cone

    The true value of SCOTUS confirmation hearings: permitting well-connected left-wing law professors to meet baseball players.

    If anyone else doubted the value of confirmation hearings before, this certainly would change their mind.

  4. the hearings serve useful purposes, despite their severe flaws. Requiring the nominee to run this gauntlet deters the nomination of cronies and hacks who aren’t knowledgeable and smart enough to avoid looking like idiots on national TV, as well as those who lack basic knowledge of constitutional law issues. As White puts it, ” the process deters palpably unqualified nominations. Presidents know they cannot nominate a judge who cannot convey a basic understanding of the law in response to senators’ questions.”

    The notion that the kinds of questions we heard have this kind of deterrence effect is laughable. What did we learn about Barrett’s knowledge of Constitutional law from, say, the question about whether she ever made unwanted sexual advances? Nothing.

    Making them retake the bar exam would have a better sifting effect than this freak show.

    And given that almost every nominee in the last several decades has been promoted from a federal court of appeals (except for Kagan who was the Solicitor General and then a professor and Dean at Harvard Law School) it is not hard to screen out the hacks. They have a record, and one can discern their ability and knowledge much better from reviewing that than from hearings.

    1. Yes. Even a hack can learn to say,

      “I’m sorry, Senator. I can’t comment on that because it might come before the court.”

      Memorize that and a few other evasions and you’re good to go.

      1. Hack is right.

        “Ginsburg herself explained during her hearing, “a judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

        1. You’re a moron.

          Here’s a clue. This is an invalid syllogism:

          Some nominees say X.
          Some nominees are hacks.
          Therefore, every nominee who says X is a hack.

            1. I think I’m with Bob on this one.

              Ginsburg set a terrible precedent. The Senate shouldn’t have let her get away with it, and having made that mistake once, they definitely shouldn’t have doubled down and let future nominees follow suit.

              Going into the hearings, we already know that whoever nominated is a “keen legal mind” (whatever that garbage is supposed to mean). So we can be reasonably confident that however they rule, they’ll write sufficiently sophistic gobbley-gook to make the lawyers happy. The real question is “will they rule right“, and those are the questions avoided.

              So yeah. Ginsburg set a terrible precedent. There’s plenty of good to say about her legacy, but her impact on judicial nominee hearings is not one of them.

    2. Requiring the nominee to run this gauntlet deters the nomination of cronies and hacks who aren’t knowledgeable and smart enough to avoid looking like idiots on national TV, as well as those who lack basic knowledge of constitutional law issues.

      It never occured to me that looking like an idiot on national TV and parading complete ignorance of constitutional law issues, was a no-no in Senate Judiciary Committee hearings. To the casual TV viewer those things seem to be pretty much compulsory, except for the poor nominee who has to sit there quietly and pretend to take the inmates seriously.

      I thought we were going to get one of those Prof Somin ” the voters are too ignorant to hold the fate of the country in their hands” specials, but applied to the Committee members.

      I favor doing these hearings the other way around. The nominee asks the questions and the Senators try to answer. It would be a lot less tiresome and there would be a bit more discussion of the law.

      After appointment, the nominee could then grade the Senators. It’d have to be on a curve though.

  5. Oh, I wouldn’t call them entirely useless…

    For example, my opinion of Barrett went from “bad” to “worse” when she refused to say that Griswold was correctly decided, and used her “no comment” routine on Lawrence v. Texas (thus implying that she thinks it’s still in play).

    I mean, I knew she was a hard-right conservative. But even most hard-right conservatives have been mum about Lawrence and Griswold in the last decade.

    1. Those decision made national law. They violate Article I Section 1 giving “all” lawmaking power to the Congress.

    2. Also, everyone got to see what a total jackass Hawley is.

      1. Meh. We knew that one already. Hawley isn’t exactly subtle.

  6. Hearings on Garland would have been very instructive and very consequential.

  7. I was disappointed that no one with any apparent knowledge of the principles of historical reasoning showed up, to participate in the examination of this would-be originalist—not any Senator, and not the nominee herself. From her discussion of originalist principles, all I could ascertain was that she is pretty certain the language she learned growing up is a sufficient tool to discern the original meaning (or public understanding!) of antique texts.

    As for historical reasoning? No sign that she even knows that it is a special kind of activity, with rules of its own. She did not show she understands that historical reasoning must be constrained to conform to time’s one-way arrow—or to any of the other practical constraints which limit reasonable historical conclusions—by discernment of circumstances related to times, places, and contexts, as disclosed in specific historical records.

    Also, no sign that she understands that occurrences and changes in philosophy during the interval between then and now have markedly inflected current thought, while leaving original thought completely alone. All of that accumulated change enables thoughts today which were utterly impossible to think hundreds of years ago—and almost regardless of topic, such disparities in thought are the rule rather than the exception. Does Barrett know this? Not that you could tell in the hearings.

    Because of that problem, similarly unwary would-be originalists routinely fall victim to the error of attributing to 18th-century historical figures the thoughts of 19th- or 20th-century persons—as attributed to those by 21st-century political scholars or legal practitioners. By that misjudged method, a mish-mash of successive pasts gets pasted over an earlier era that preceded all of them.

    Thus, a modern person cannot begin to understand what a historical person might think unless that modern person remains acutely mindful of all the modern—and pre-modern—thoughts that the historical person cannot possibly have thought, because predicates for that kind of thinking did not exist until later. Lack of insight into that subtle problem of historical interpretation may be the single biggest stumbling block afflicting would-be originalists, if they lack professional historical training needed to sort out the tangle.

    Such stumblers include nearly all lawyers and judges. Does Barrett even know that problem exists? No sign that she does.

    Barrett showed what looked like a nicely calibrated admiration for Scalia, without apparently harboring any inkling that Scalia’s historical reasoning was an incompetent mess. Too bad no one questioning her brought any tools that might have helped enlighten either the public, or the nominee, about these considerable difficulties inherent in the originalist method.

    So now, once seated on the Court, cocooned in the extravagant deference afforded that office, widespread acceptance of Barret’s practice of naive originalist pseudo-methods risks encouraging her to adamant confidence in historically dubious findings. She has precedent to follow, after all. It’s what happened to Scalia.

    1. In fact there was an excellent opportunity to discuss originalism and textualism generally in her scandalous remarks about “sexual preference.”

      1. If a nominee says “sexual preference” in the morning and the dictionary folk change the meaning in the afternoon, should we interpret her remarks by reference to the morning definition, or the afternoon definition ?

      2. To what extent can dictionaries be relied upon as a record of the public meaning of a word, if a single usage in a nomination hearing can change the dictionary ?

  8. There is no legal requirement for confirmation hearings, and in fact there weren’t any until FDR tried to pack the court in the 1930s and the dhimmicrats started politicizing the process in the 1950s. Not to mention, how can a so-called ‘libertarian’ call for more government clown shows?

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