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

Chapter 2. The Hearings in Historical Perspective

9 Two The Hearings in Historical Perspective You have followed the pattern which has been in vogue since—since Bork. —Senator Arlen Specter, criticizing Elena Kagan during her 2010 Supreme Court confirmation hearing Was Arlen Specter right?1 Have nominees since Robert Bork’s 1987 failed confirmation bid become increasingly evasive—remaining mum on controversial topics in the hopes that it will help secure them a seat on the Court? Specter is certainly not alone either in his perception of the hearings or in his frustration. As we discussed in chapter 1, there is a growing consensus among scholars, pundits, and political leaders that the hearings have become a “mess” over the past several decades (Carter 1988). But is this view accurate? Have these kinds of changes for the worse really taken place? In this chapter, we begin the process of looking for answers. Our first task is to explore the hearings from a historical perspective. How and when did the hearings begin? And have there been any obvious changes—to the structure of the hearings, the kinds of questions that are asked, or the extent to which nominees answer them—since that time? Origins As we noted in the previous chapter, Article II, Section 2 of the Constitution empowers the Senate to give “advice and consent” to the president with regard to justices of the Supreme Court. Though there is some ambiguity about what “advice and consent” means, when it comes to Supreme Court justices the practice has always been for the president to nominate and the Senate to vote on 10 supreme court confirmation hearings in the U.S. senate confirmation.2 In terms of the prevote process, however, things have evolved considerably over time. Standing committees were introduced in Congress in 1816. The Judiciary Committee was one of these original standing committees. Initially, however, not all judicial nominations were automatically referred to the Judiciary Committee . Instead, they had to be expressly referred by a motion from the Senate. Rutkus and Bearden (2009) recount that while this arrangement was in place, roughly one-third of Supreme Court nominations made it to the full Senate without passing through the Judiciary Committee first (Rutkus and Bearden 2009, 5).3 In 1868, however, the Senate’s rules changed, essentially mandating referral of all presidential nominees to “appropriate committees” (6). This procedure , which still prevails today, does allow for exceptions. Thus, on a few occasions—such as when the nominee was a member of Congress or had been confirmed for another federal position—the nomination has proceeded to a confirmation vote directly. But the overwhelming majority of Supreme Court nominees since 1868—and all of them since 1941—have been referred to committee (6). As table 2.1 illustrates, however, referral to committee did not mean that a nomination would have a hearing. Between 1868 and 1929, hearings were actually quite rare. In fact, only three nominees during this time period had hearings : George Williams in 1873, Louis Brandeis in 1916, and Harlan Fiske Stone in 1925.4 What is more, these proceedings did not resemble the modern hearings with which most Americans are familiar. Williams and Brandeis did not answer questions; only adversarial witnesses appeared and testified. And while Stone did take questions—the first Supreme Court nominee to do so at a public hearing—the inquiries were limited to his role in the infamous Teapot Dome Scandal. Thus even for these three nominees, the confirmation process was not nearly as exacting as it is today. More commonly, a nominee during this period would move through without a hearing and without much delay. As just one example of this, George Sutherland, who was selected by Warren Harding to replace Justice John Clarke on September 4, 1922, was confirmed by the Senate the next day (Rotunda 1995, 126). Even after 1929, when the Senate passed a rule making public hearings the default procedure for judicial nominations (Rotunda 1995, 127), most of the early hearings were just formalities.5 Indeed, as table 2.1 shows, nominee testimony continued to be the exception to the rule. For example, William Douglas appeared at his 1939 hearing but was not asked any questions, while Sherman TABLE 2.1. Supreme Court Nominees and the Senate Judiciary Committee, 1916–54 Was Were Nomination Committee’s Did Referred to Final Nominee Judiciary Hearing Actions Testify Nominee Year Committee? (Y/N)? Favorable? at Hearing? Louis D. Brandeis 1916...