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

Chapter 5. Polarized and Televised: Changes in Committee Voting since 1981

71 Five Polarized and Televised Changes in Committee Voting since 1981 So, for me, the first criterion upon which I will base my vote is whether you will answer questions fully and forthrightly. —Sen. Chuck Schumer (2005) This was his one moment of accountability. This was the one time that almost 300 million Americans got a chance to ask questions before he could potentially take a seat on the highest court in the land. And there was too little substance and too little accountability to the American people and to the Senate. —Sen. Patrick Leahy (2006) I don’t know how we can force nominees to be forthcoming except through our votes. —Sen. John Kyl (2010) At first glance, the quotes above all point to one conclusion: Supreme Court nominees who are not sufficiently forthcoming during their confirmation hearings should not expect to get much support from senators on the Judiciary Committee. Forthcomingness, as we have been calling it, appears to be a key factor in determining whether Committee members vote “yes” or “no” on a nominee. But a closer look at the quotes complicates things a bit. Schumer and Leahy, both Democrats, were speaking about the confirmation of Samuel Alito, who was nominated by George W. Bush. Kyl, a Republican, was talking about Elena Kagan, nominated by Barack Obama. Does this mean that senators take nominee responsiveness seriously only when the nominee is from the other party, 72 supreme court confirmation hearings in the U.S. senate and that they are much less concerned about it when their own party’s president made the nomination? It is certainly interesting to note that in his opening statement before Kagan’s hearing, Senator Schumer made none of the same demands about answering questions as he did for Roberts. Likewise, Senator Kyl’s opening statement before the Roberts hearings stressed how important it was for the Committee to respect “limits on the types of questions” that were asked—a very different position from the one he took for Kagan (Roberts 2005b). But as interesting as these quotes and statements may be, they raise more questions than they answer. Is nominee forthcomingness something that influences how senators on the Judiciary Committee vote? Is it only relevant when the nominee is from the opposing party? Or are votes really determined by partisanship and ideology in every instance—meaning that senators may talk about nominee candor publicly when in fact they are basing their decisions on very different considerations? Needless to say, we think this is an especially important set of considerations because the way that senators vote on Supreme Court nominees has profound effects on the American political landscape. Moreover, this issue goes to the heart of the claims levied against these hearings by critics. Specifically, if these hearings are not providing enough information to the senators (i.e., the hearings are broken), that poses a fundamental problem for our democracy and system of checks and balances. On the other hand, if these hearings are providing information, and yet we find that it has no bearing on how senators vote (i.e., the senators are not using the information to guide their voting decisions), then it is not that the “hearings are broken” but rather that the senators are using the hearings for something else. The analysis in this chapter sorts all of this out and gives us answers to these high-stakes questions. Changes in the Senate and the Judiciary Committee Before examining whether a nominee’s responsiveness really drives how senators vote at the committee stage, it makes sense to spend a few moments discussing some of the ways in which the hearings have changed over the years. We first saw some of these changes in chapter 2, but we revisit and expand on them now in order to highlight the degree to which scrutiny of the nominees— the number of senators who ask questions, as well as the number of questions and the types of questions that they ask—has increased since the 1980s. Polarized and Televised 73 Senate Norms In a 1971 law review article written on the heels of the rejection of Clement Haynsworth and Harrold Carswell, then-Senate staffer Mitch McConnell decried that the partisan body of the Senate had charted an unwise path by not providing deference to the president (McConnell 1971). According to McConnell , this regrettable development could be traced back to “attacks” launched...