Are Senators Too Soft on Would-Be Justices?
A new study published in the journal Constitutional Commentary examines how closely the answers that U.S. Supreme Court nominees give senators during confirmation hearings track with how they vote in actual cases on the high court.
The study’s co-author, University of Kentucky College of Law professor Lori Ringhand, told National Public Radio that the review followed the late Chief Justice William Rehnquist’s court. The study’s other authors are Marquette University Law School professor Jason J. Czarnezki and John Marshall Law School professor William K. Ford.
“We were trying to ascertain what types of questions generated predictive answers,” Ringhand said. Essentially, researchers wanted to know if voting patterns could be teased out with more general questions about judicial philosophy or more specific questions.
The study is entitled, “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court.”
Clearly, Ringhand says, the more specific questions “generated better answers” in terms of revealing predictive behavior on the high court.
For example, when nominees were asked about originalism, answers were pretty much the same. When asked specific questions about the rights of criminal defendants, their answers were still not extremely predictive, but they were closer.
Specifically, during his confirmation hearings, then-nominee Clarence Thomas left senators and the the public with the impression that he would hold fast to precedent. But according to Ringhand, Thomas voted more often than any other justice to overturn precedent.
Ringhand says the results leave her to believe that in an effort to strike a balance and avoid asking inappropriate questions about how a would-be justice will vote on future cases, the Senate is not pushing nominees hard enough.
“I think the Senate can ask better questions than they do,” she says. For instance, senators could ask nominees how they would analyze already decided cases. Nominees, she says, would be adding nothing different than sitting justices by giving the public their opinion.
Also see a related paper by Ringhand, “I’m Sorry, I Can’t Answer That.”
Updated at 9 a.m. to add links to the study and related paper.
