Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade

Chapter 1. A Vapid and Hollow Charade?

One A Vapid and Hollow Charade? One can only speculate about Elena Kagan’s first thoughts when she learned in May 2010 that she would be nominated to replace the retiring John Paul Stevens on the U.S. Supreme Court, and thus soon face a Senate confirmation process. But it seems safe to assume that it did not take long for the words “vapid and hollow charade” to come to mind. More than a decade earlier, that was how Kagan had described modern Supreme Court confirmation hearings in a widely read law review article. Earlier hearings were “serious discussion[s],” Kagan claimed, but since the 1980s the proceedings had been dominated by nominees who provided only “evasive answers,” “platitudes,” and “personal anecdotes” (Kagan 1995, 941). As a result, the confirmation process had completely lost its “educative function” with respect to the public. Instead of helping Americans make informed assessments of their Supreme Court nominees, the hearings now merely reinforced “lessons of cynicism” that all too often plague American political life (941). Simply put, until nominees were once again willing to answer tough questions, the hearings would have little or no value. Whether Kagan would apply this high standard to her own testimony was one of the most anticipated storylines of her confirmation hearing. Ultimately, it turned out to be much less of an issue than expected, in large part because Kagan walked back somewhat from her earlier views, telling the Judiciary Committee that she never meant to suggest that prospective justices should have to discuss their views on pending cases (Kagan 2010, 6). 2 supreme court confirmation hearings in the U.S. senate But the larger point—the one that provides not only the title but the motivation for this book—is that Kagan’s characterization of the post-1980s hearings as a “vapid and hollow charade” enjoys nearly universal assent among scholars, pundits, senators, and just about anyone else who follows the Supreme Court confirmation process. The precise descriptions themselves may vary— from “exercise[s] in obfuscation” (Yalof 2008) to a “‘kabuki’ dance” (Fitzpatrick 2009), a “farce” (Benson 2010), or simply a “mess” (Carter 1988)—but the basic idea is the same: Supreme Court nominees are no longer forthcoming during their testimony, and Supreme Court confirmation hearings are no longer working properly as a result. For all of its popularity, however, this rather grim assessment of the hearings has at least one rather glaring problem: it is not all that accurate. What Kagan and so many other critics assume is that nominees today answer fewer questions—that they are more “evasive,” in Kagan’s own words—than their predecessors . Indeed, the entire chorus of criticism surrounding the confirmation hearing process is predicated on the belief that there was a time when the hearings were more substantive, but that in the 1980s nominees began strategically avoiding controversial queries that could sink their confirmation prospects. But as we reveal in this book, that is not really what happened. As it turns out, Supreme Court nominees have actually been answering questions in roughly the same way since the hearings began in the mid-1950s, more than a half century ago. Moreover, nominees are not nearly as evasive as we have been led to believe. On average, they only refuse to respond to about one out of every ten questions they are asked, and they give forthcoming answers to nearly seven out of those ten. Thus while they may not be perfectly candid all of the time, Supreme Court nominees are much more responsive during their hearings than previously assumed. The conventional wisdom needs to be rethought. To be fair to Kagan and all of those who share her view, this hearings-indecline narrative certainly seems logical enough. Even casual Court watchers remember Robert Bork’s long and candid testimony in 1987, which revealed a conservative judicial philosophy too far outside the mainstream for senators to support. In the wake of this, it would only be natural for subsequent nominees to be reticent and cagey in their responses. “Say too much and get rejected” seemed to be the lesson of the Bork hearings. But Bork’s confirmation hearing was not the turning point that most people assume it to be. Nominees long before the 1980s were exhibiting comparable degrees of candor, and nominees since Bork have not been dramatically less A Vapid and Hollow Charade? 3 forthcoming. Bork was an outlier...