No More Kabuki Confirmations
There are better ways to vet a Supreme Court nominee
Posted Oct 1, 2009 10:50 PM CST
By Richard Brust
Note: Register for this month's CLE, "Supreme Court Roundup," from 1-2 p.m. ET on Wednesday, Oct. 21.
It’s a “Kabuki dance,” said Joe Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.
It’s “as if the public doesn’t have a right to know what you think about fundamental issues facing them,” he told John G. Roberts Jr. at his 2005 confirmation hearing for chief justice.
Biden’s successor, Sen. Ted Kaufman, told the National Law Journal that the process resembled the Super Bowl—with press coverage all around.
It’s “a subtle minuet,” said Sen. Arlen Specter during the hearing for Justice Samuel A. Alito Jr., “with the nominee answering as many questions as he thinks are necessary in order to be confirmed.”
For his part, Justice Felix Frankfurter, plagued during his confirmation hearing with suggestions that he was partial to communists, favored the athletic comparison. “I thought that it would just be a little room where we would sit around,” he said of the Judiciary Committee hearing. “I found that this was Madison Square Garden.”
Whether likened to theater, dance or a sporting event, the confirmation process for the Supreme Court has become a set piece of punch and counterpunch, with enough irritation left from one process to undermine the next. Nominees who speak their mind are punished for doing so. Utterances made as a law student are parsed and judged as though intellectual growth ends with puberty. Lobbyists manipulate, politicians preen and the press hustles to find the gotcha news leak that will grab the attention of a leering national audience.
There are proposals out there to change a tedious process that seems to have lost its purpose: ascertaining the fitness of a particular nominee to become a high-ranking federal judge. They range from the modest—say, a written examination regarding a nominee’s analysis of cases already decided—to the radical—let Supreme Court justices run for office. Whether by scalpel or sledgehammer, there seems to be widespread agreement that something needs to yield.
“It’s become a media spectacle controlled by interest groups to get people on the court who will vote a certain way,” says University of Minnesota law professor David Stras. “It’s less about judicial temperament” than it is about “senators getting their licks in.”
“With public debate largely in the hands of the fiercest of partisans, every fight is a death match,” says Yale law professor Stephen L. Carter, who’s long been critical of the process. “It’s a mess and it’s getting messier.”
But what most upsets observers is what they see as the steady deterioration of the process. What could be a broad examination of a nominee’s judicial philosophies and a view of what the person would do on the court has instead become a hunt for the offhand remark uttered out of class or for membership in a group with a sniff of political attitude.
“It’s frustrating in that the senators seem to be trying to pull teeth,” says Princeton professor and pro-vost Christopher L. Eisgruber, who penned The Next Justice, published in 2007. “Often you get the impression that senators are trying to craft the best question that the nominee just can’t duck.”
For example, Sonia Sotomayor said at her hearing in July that many have asked what her philosophy of law is. “Fidelity to the law,” she told the Judiciary Committee. Interpreting the law and statute according to their terms, she repeated.
Eisgruber was underwhelmed.
“At one point Sotomayor says her job is to separate the facts from the law,” he says. “Well, what does that tell you?”
Not much, said senators—Republican and Democratic. “There were folks on both sides of the political spectrum who thought it was not useful,” says Stras, who has authored a number of articles on the judicial appointment process. He adds, “We didn’t learn much about the nominee.”
At one stage in the hearing, Sen. Tom Coburn, R-Okla., wanted to know whether new technology indicating the status of an embryo could be considered in an abortion case. Sotomayor said she could respond only as to what the court has required. “We don’t make policy statements in the court,” she said.
She demurred when Coburn later asked her opinion on the right of a person to self-defense. “But that’s what the American people want to know, your honor,” Coburn said.
Sen. Al Franken, the rookie Democrat from Minnesota and former Saturday Night Live comedian, went back and forth with Sotomayor over voting rights. Sotomayor declined to answer. “So, that means, uh, you’re not going to tell us,” said Franken. The gallery roared.
In fact, Sotomayor’s scripted responses followed a pattern that Justice Ruth Bader Ginsburg successfully used in her 1993 hearing. Observers call it the “no hints, no forecasts, no previews” tactic. The nominee parries the question as too specific to a certain case, or too general and hypothetical to illuminate a discussion.
In a 1995 essay, Elena Kagan, now solicitor general, likened the approach to a military pincer movement—cut off the opponents on either side. Justices Alito and Stephen G. Breyer, and Chief Justice Roberts—all following Ginsburg—used the technique successfully in their confirmation hearings.
Ginsburg, for example, turned away a question from Sen. Dianne Feinstein, D-Calif., regarding the Second Amendment. “But this is a question that may come before the court again,” Ginsburg said, “and because of where I sit it would be inappropriate for me to say anything more than that.”
Feinstein pressed: Couldn’t the nominee say something about the methodology she might apply? “I wish I could, senator,” said Ginsburg, “but apart from the specific context I really can’t expound on it.”
Sotomayor’s hearing featured “the Ginsburg model taken to an extreme,” Stras says. Nominees won’t answer questions that might disturb their chances.
The strategy, adds Eisgruber, was dictated by the numbers. “There was a limit of how much we can expect from [the Sotomayor] hearing,” he says. “With 60 [Democratic] senators it was like a football team going into a prevent defense.”
For his part, Roberts cleverly evaded his interrogators by comparing a justice to a baseball umpire. “Umpires don’t make the rules; they apply them,” he told the Judiciary Committee.
“Nobody ever went to a ballgame to see an umpire.” Critics have since attacked the analogy—no two umpires share the same strike zone, they contend—but it nevertheless kept the senators off-kilter.
Photo by CNP/Getty Images
HAUNTED BY THE ’80S
There’s little doubt what the nominees want to avoid. The 1987 confirmation hearing of Robert H. Bork was the most condemnatory, yet at the same time the most informative. The process was so public and confrontational that it spawned a new term: to bork, defeating a nominee with an attack on the person’s character, background and philosophy.
An academic and renowned conservative, Bork left a paper trail of speeches and law review articles that opposition lobbyists and the Judiciary Committee picked to advantage. One senator called Bork’s pulling back from a previous opinion a “confirmation conversion.”
Nor did Bork boast TV appeal. His abrupt answers, scruffy beard and scowling mien prompted Washington Post TV writer Tom Shales to note that he “looked and talked like a man who would throw the book at you.”
Nominated toward the end of President Ronald Reagan’s second term, as the administration was battling the Iran-Contra scandal, the Senate eventually rejected him.
On the flip side, however, Bork and the Judiciary Committee fiercely debated his judicial philosophy—privacy, civil rights, the commerce clause, originalism. Carter says Bork was “the only nominee who has ever embraced rather than resisted such questioning.”
Even before Bork, says Carter, “no one answered Senate questions about likely votes, for the very good reason that even to inquire violates the separation of powers. Bork answered and was pummeled. Since Bork, nobody answers.”
The result of borking was that judgeships became full-scale political campaigns, said writers Jane Mayer and Jill Abramson in Strange Justice, their 1994 assessment of the next contentious Supreme Court confirmation, that of Clarence Thomas.
“The Thomas fight was the bitter fruit of the attacks made on Bork,” said Tony Podesta, then head of the liberal group People for the American Way. “We lowered the standard.”
After Thomas’ former aide Anita Hill came forward to claim sexual harassment, the tense-but-controlled proceedings devolved into a schoolyard hissing match, with Thomas angrily claiming a “high-tech lynching” and conservatives screeching at Hill, calling her a “spurned woman,” “incompetent professional” and “perjurer.”
Thomas survived, barely, on a 52-48 vote. From then on, the Judiciary Committee would hold private sessions to consider private information.
Because the process involves two political branches—the president to nominate and the Senate to give “advice and consent” (or reject)—it naturally leads to tension.
“One thing to remember is how the founders designed it,” says Stras. “It was supposed to be a robust look at the integrity and judicial philosophy of the nominees.” The Senate has shot down a number of presidential nominations since 1795, when it rejected John Rutledge for his opposition to the Jay Treaty.
But the 20th century changed the program, and Stras cites three seminal events:
• The 17th Amendment, adopted in 1913, after which senators were elected directly and made responsive to the citizenry rather than to the state legislature.
• Television, which broadcasts how the sausage is made.
• And the court under Chief Justice Earl Warren, with its gale-force revolution in constitutional law, changing the court’s focus from property rights to civil and personal rights.
“It is only since Brown [v. Board of Education in 1954] that the court has become a prize worth spending immense political capital to win,” writes Carter. “When a new justice is selected, what hangs in the balance, rather, is the list of rights to be protected or unprotected.”
The combination has made the process more political, ideological, visible and combustible.
Among the nominees who perished in the Senate were John J. Parker in 1930, Clement Haynsworth Jr. in 1969 and G. Harrold Carswell in 1970, all Southerners attacked for anti-labor decisions or segregationist statements. In 1968, Abe Fortas, nominated by President Lyndon B. Johnson for chief justice, bore the outrage of senators who scapegoated him for Warren court rulings issued before he even joined the court in 1965.
Though successfully confirmed, the court’s two African-American nominees, Thurgood Marshall and Thomas, were submitted to such embarrassment that many scorned their treatment by the Judiciary Committee as race-driven.
A BRANDEIS REVIVAL?
Nothing, though, was as nasty as the 1916 hearing for Louis D. Brandeis, Stras says. “It was the messiest hearing.”
In fact, some of it resembles Sotomayor’s nomination process. A Democratic president—then Woodrow Wilson, now Barack Obama—in an era recently dominated by Republicans, was choosing a progressive attorney. Even the court was overwhelmingly composed of GOP appointees.
The nominations were demographic milestones: Brandeis, a Jewish-American, and Sotomayor, a Hispanic-American, were the first of those ethnicities picked for the high bench; and each was involved in the social issues of his or her minority group. Brandeis was a prominent Zionist; Sotomayor was a board member of the Puerto Rican Legal Defense and Education Fund.
Wilson—in a comment that evokes Obama’s “empathy standard”—said nominees “must be put forward whose whole comprehension is that law is subservient to life and not life to law.”
And even though they graduated with honors from the top law schools in the country (Brandeis at Harvard; Sotomayor at Yale), the right wing howled.
In the Brandeis case, former President William Howard Taft, a pro-business Republican who would later be chief justice, called Brandeis a “muckraker,” an “emotionalist,” a “socialist prompted by jealousy, a hypocrite.” He added, “It is one of the deepest wounds that I have had as an American and a lover of the Constitution.” A well-known magazine writer called Brandeis “untrustworthy” and “troublesome.”
(A former ABA president, Taft lobbied the current ABA president and six former presidents to protest Brandeis.)
The nominees’ opponents combed the files, tweaking every hair of questionable decision-making, noting past acquaintances. They mounted a campaign demanding more time for hearings. For Brandeis, they hired their own prosecutor. They brought to Washington witness after witness, pressing to allow hearsay before the Senate Judiciary Committee. Some opponents made remarks that did more than imply racial or religious bias.
In the end it was useless. The Senate, controlled by Democrats, confirmed the nominees.
The Senate eventually changed its rules. Nominees were absent until 1925, when Harlan F. Stone volunteered to testify; after 1955, with John M. Harlan II, all nominees did so. In 1929 the floor debate, previously closed, was opened and required a roll call vote.
But now the sheer intensity of preparation has expanded the duration from nomination to confirmation as senators, staffers, reporters and the FBI plod through a thicket of background material.
“Today’s confirmation battles are no longer government affairs between the president and the Senate,” as they were in the 19th century, says University of Georgia professor John Anthony Maltese. “They are public affairs, open to a broad range of players.”
According to Brigham Young University professor Richard Davis, the average lag was 2.5 days from 1789 to 1809 and 8 days from 1810 to 1830. The average multiplied to 94.3 days from 1981 to ’90, and 75.7 from 1991 to ’94. In this decade, the average is 78.6 days: 72 for Sotomayor and Roberts, and 92 for Alito.
So, too, has lobbying increased. Between 1930 and 1960, a total of 26 interest groups testified before the Judiciary Committee, according to Maltese in his 1995 book, The Selling of Supreme Court Nominees. From 1960 to 1994, there were 206 groups testifying.
The number of transcript pages has run from a high in the low hundreds in the early part of the 20th century to 6,511 for Bork and 3,300 for Thomas, according to Maltese. Even the less combative hearings of David H. Souter and Anthony M. Kennedy ran to more than 1,000 pages each.
“The hearings seem to have become a forum in which senators can preach to their constituents,” says Eisgruber, a former clerk to Justice John Paul Stevens. “At some point senators are going to have to decide among themselves whether they find this process of question and evasion the best way to go.”
One attempt at a solution came in 1988, after the Bork hearing, when the nonprofit Twentieth Century Fund issued a Task Force on Judicial Selection.
The panel noted that the modern confirmation process “was dangerously close to looking like the electoral process.” The task force suggested that nominees no longer be required to appear before the Judiciary Committee, and that the Senate base its decision on the nominee’s written record and the testimony of legal experts.
Carter proposes refocusing the Senate’s questions on the nominee’s qualifications, rather than disqualifications. Give the nominee the chance to state his or her resumé, and dispense with foolishly chastising the person for previous acts—unless, of course, they involve legal aptitude, or illegal or unprofessional behavior.
“Sonia Sotomayor was an appellate judge for many years,” says Carter, who was a clerk to Justice Marshall. “The senators should have analyzed her rulings—all of them, not a handful of cherry-picked controversial ones—and decided whether the author was fit to sit on the nation’s highest court. I have read plenty of her opinions and have seen an exemplary and fair-minded jurist at work.”
Nor does the nominee need to be present. “With the nominee in the room, we have all the elements of farce: learned questions, evasive answers and vulgar assaults on character tossed in,” Carter says. “Without the nominee, there would be no cameras and few senators present. We might actually focus, then, on the only evidence that really matters: the opinions written by the nominee as a judge of a lower court.”
But maybe the vibrant process is worthwhile, says Stras, a former clerk to Justice Thomas. “A benefit of confirmation hearings is it’s the one opportunity for a nominee to be heard,” he says. Questioning “off camera can be more substantive and useful, but it takes away democratic accountability.”
Although he’s reluctant to propose a change, Stras suggests giving the nominee five cases that were decided by the Supreme Court, and having the nominee read and comment on them. He would avoid 5-4 rulings so as not to suggest that one justice would alter the court.
Maltese suggests that presidents pay closer attention to the “advice” portion of the Constitution, and discuss their nominee choices with senators before publicizing them. President Bill Clinton did so with Sen. Orrin Hatch, R-Utah. And Clinton’s nominees, Ginsburg and Breyer, were confirmed with relative ease.
The result would be more moderates as justices.
But a more ideological nominee could be confirmed depending on how politicized the Senate is.
“You could get a more ideologically extreme justice if you have the right makeup in the Senate,” Maltese says. President Franklin D. Roosevelt “could get his nominees with relatively little trouble” in a heavily Democratic Congress.
“The problem now,” he says, “is that the Senate is so ideologically divided, and the parties more extreme,” making the process tougher.
IN THE ROUND
For Eisgruber, the hurdle comes when senators are so confounded that they can’t pursue nominees about substantive constitutional issues. They then fish for evidence of wrongdoing.
As a solution, he suggests, first accept that all justices make policy decisions—there is no impartial umpiring. Given that, recognize that at some point each justice is going to differ from legislative statutes. The crux depends on which ideological side the justice’s thinking falls.
Then, “senators and citizens should instead focus on what the nominee thinks judicial review is good for,” Eisgruber told Scotusblog in a 2007 interview. “Investigate why and when the nominee would believe that it is desirable to substitute his or her own controversial judgments about constitutional meaning for those of elected officials.”
Exercising what he calls “selective deference,” Eisgruber suggests that the Senate should pick a standard at play on both sides of the aisle—say, the equal protection clause of the 14th Amendment. The challenge, whether for liberals or conservatives, would be to fashion questions that would invite discussion without demanding a particular outcome.
If there are going to be hearings, says Washington, D.C., attorney Seth A. Rosenthal, let litigators ask the questions. Senators can do the follow-up.
He acknowledges it’s not a new idea—Congress successfully conducted the Watergate and Iran-Contra hearings that way. But recent confirmation hearings have produced so little of substance about each justice’s jurisprudential views, it may be time to repitch.
“Unlike good courtroom examinations, the existing process doesn’t lend itself to fluid, information-producing conversations; rather, it lends itself to stilted questions, nonrevealing answers and minimal or no follow-up,” says Rosenthal, a partner at Venable who has monitored judicial nominations with the D.C.-based advocacy group Alliance for Justice.
Rosenthal outlined his proposal in a 2007 paper for the American Constitution Society. He allows that courtroom procedures aren’t perfect paths to truth, but they do elicit enough important information to allow judges and juries to decide cases. While trial lawyers might not fare any better at getting nominees to be forthcoming, he says, it’s worth giving them a shot.
“The political reality is that hearings are here to stay, so the Senate should do its best to ensure they serve their ostensible educational purpose,” Rosenthal says.
BYU’s Davis has a more radical solution: Elect the justices. The confirmation process, Davis says, “has all the trappings of an election—or at least a plebiscite—image-making, interest group involvement, press handicapping, paid advertising, staged events. The process is directed at the public, but the public doesn’t get to participate as they do in an election.”
In his 2005 book Electing Justice, Davis offers several options: Have the public vote for one of three candidates the president selects; use the election as a plebiscite and treat the results as a recommendation; or call an election when the nominee falls short of 60 percent of the Senate vote.
The reaction has been “primarily negative,” Davis says. “That doesn’t surprise me. It is a controversial notion and I did want to get people thinking about the process.”
But even with runaway lobbyists, ad campaigns, a politicized Senate, the court becoming a player in the political process, and nominees mastering the art of bobbing and weaving, there’s still a valid reason for the process.
“The one democratic moment [you get] when it comes to judges is when they are appointed,” Stras says. “So the one chance you get is at confirmation.”
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