In a 1995 book review, an up-and-coming University of Chicago law professor criticized Supreme Court nomination hearings as a “vapid and hollow charade.” The professor’s name was Elena Kagan. When Barack Obama nominated her to the Supreme Court in 2010, Kagan approached the Senate hearings in a highly respectful manner, notwithstanding her previous sharp criticism of them.
Nevertheless, Kagan’s characterization of the nomination hearings as “vapid and hollow” remains accurate, as demonstrated last week by the Brett Kavanaugh hearings. During his testimony, Judge Kavanaugh carefully avoided saying anything interesting, revealing, or surprising. We learned nothing of value about Judge Kavanaugh beyond what we already knew.
But the opaque nature of the Kavanaugh hearings does not represent much of a departure from past hearings, nor does it mean we lack a reasonably clear sense of Judge Kavanaugh’s judicial philosophy. As a D.C. Circuit judge, he has heard more than 1,500 cases. Accordingly, he has articulated his views to a far greater extent than Elena Kagan ever did prior to joining the Supreme Court. Before criticizing the Kavanaugh hearings, therefore, a few historical points are worth emphasizing.
First, over the course of history, Supreme Court hearings have only rarely shed new light on the nominees’ judicial philosophies.
In her 1995 piece, Elena Kagan blamed the substance-free nature of the hearings on the famous 1987 Robert Bork nomination battle. A D.C. Circuit judge and former Yale law professor, Bork had amassed a long paper trail of archconservative opinions that put him in the crosshairs of the Democratic-controlled Senate. The fact that Bork was slated to replace Lewis Powell, a moderate conservative who had voted with the majority in Roe v. Wade, underscored what was at stake. After extremely acrimonious hearings (chaired by Sen. Joe Biden), the Senate rejected Bork’s nomination 58-42 in a vote that closely tracked the Democrats’ 55-45 Senate majority.
Although Kagan harbored no sympathy for Bork’s ultraconservative judicial philosophy, she bemoaned the chilling effect Bork’s defeat had on subsequent nomination hearings. “Not since Bork,” she wrote, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.” In Kagan’s view, the Bork nomination fight discouraged subsequent nominees from robustly discussing their judicial philosophies. Whereas the Bork hearings “presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee,” Kagan argued that the hearings in subsequent years became an “empty” ritual.
The historical record, however, does not bear out Kagan’s argument. No nominee before or after Bork ever engaged in such a forthcoming and substantive debate as Bork did with the Senate Judiciary Committee. In other words, the Bork hearings themselves were the historical outlier, not the hearings that came before or after Bork.
The Brandeis Hearings
As it happens, the Senate did not even regularly hold nomination hearings for the first 125 years of our country’s history. In the 1800s many Supreme Court nominations did not pass through the Judiciary Committee and, even when they did, it was rare for the committee to hold a hearing. As Dion Farganis and Justin Wedeking point out in their excellent book, Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade, the Senate Judiciary Committee held only one Supreme Court hearing between 1868 and 1915, and it was not open to the public.
Only in 1916, when Woodrow Wilson nominated Louis Brandeis to the Supreme Court, did the notion of regular Senate hearings on nominations begin to take hold.
But even then, the Brandeis hearings provided nothing to write home about. As the historian Melvin Urofsky explained in his 2009 biography of Brandeis, “After nearly two months of hearings, a person reading the reports [of the hearings] would not know more about Louis Brandeis’s fitness to be a justice than when the testimony had begun, and partisans on either side would not have changed their minds.” Instead of a serious exploration of Brandeis’s judicial philosophy, the hearings became a forum for reactionary business interests and anti-Semites to depict Brandeis—one of the most eminently qualified and exceptionally brilliant attorneys to ever sit on the Court—as an incompetent and unqualified radical.
In the end, Senate Democrats brushed off the ridiculous accusations and confirmed Brandeis by a vote of 47 to 22. But the substance-free, politically-charged nature of the Brandeis hearings set a pattern that endured. Until the mid-1950s, many nominees declined to even attend the hearings. Brandeis, for example, never testified before the Senate, nor did other famous Supreme Court nominees, including Hugo Black and Earl Warren.
Remarkably, most Judiciary Committee members did not even bother to attend Supreme Court hearings either until the 1980s. As Professor Wedeking points out, “most Americans would be shocked to learn that prior to 1981, it was rare to get half of the committee to show up and ask questions.” That only changed when the television networks decided to broadcast the Sandra Day O’Connor hearings in 1981. Live television coverage, not a sober and nuanced examination of Constitutional law, was the attraction senators could not refuse.
The Ginsburg Rule
A second point to keep in mind is that the “Ginsburg Rule,” whereby nominees refuse to discuss specific legal issues that could one day come before the Court, did not begin with Ruth Bader Ginsburg in 1993.
Sandra Day O’Connor adopted a position identical to the “Ginsburg Rule” during her 1981 hearings:
“There is . . . a limitation on my responses which I am compelled to recognize. I do not believe that as a nominee I can tell you how I might vote on a particular issue which may come before the Court, or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the Court again. To do so would mean that I have prejudged the matter or have morally committed myself to a certain position. Such a statement by me as to how I might resolve a particular issue or what I might do in a future Court action might make it necessary for me to disqualify myself on the matter.”
Nominees before O’Connor took the same approach. From day one, therefore, the great majority of Supreme Court nominees have bobbed, ducked, and weaved whenever a potentially controversial question has come their way. For example, in 1955 John M. Harlan sidestepped questions (from pro-segregation senators) regarding the Brown v. Board decision. Four years later Potter Stewart took the same approach to the segregationist senators. In 1967 Thurgood Marshall refused to answer questions about the rights of criminal defendants. In 1971 Lewis Powell declined to state his view of whether the Constitution protected terrorism suspects. In 1988 Anthony Kennedy refused to answer questions about capital punishment. And in 1990 David Souter refused to state his position on Roe v. Wade.
The practice of graceful evasion has continued ever since. For example, in refusing to answer specific legal questions during her testimony in 2010, Elena Kagan explained: “You shouldn’t want a judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues.”
The “Ginsburg Rule” is thus more accurately described as the “Everybody but Bork” Rule. As Senator Sam Ervin once quipped, Supreme Court nominees have carved out “a new right not found in the Constitution:” the judicial nominee’s “right to refrain from self-incrimination.”
Settled Law
Third, when a nominee uses the phrase “settled law,” it does not necessarily forecast in any way how the nominee will vote on that same issue in the future.
In a very interesting 2018 study in the Chicago-Kent Law Review, Neil Gorsuch and the Ginsburg Rules, Lori Ringhand and Paul Collins show that to an unusually extreme extent Neil Gorsuch was unwilling to recognize even historical cases as “settled law.” As Professor Ringhand and Professor Collins explain, Gorsuch declined “to affirm his agreement with previously contested but now settled constitutional cases” and thus was less responsive to Senate questions “than any other nominee since 1968.”
In a follow-on op-ed in the Washington Post last week, Professor Ringhand and Professor Collins argued that the Senate’s constitutional power to confirm Supreme Court nominees “is under threat” because Gorsuch (and now Kavanaugh) refused to answer questions about “even canonical cases.” According to Ringhand and Collins, a nominee should in good faith identify and elaborate on the issues the nominee considers settled law:
“A nominee’s willingness to accept, in public and under oath, the correctness of previously contested but no longer controversial constitutional cases and issues is critical to the success of the confirmation process. Nominees avoid offering opinions on current disputes, but their affirmation of the contemporary constitutional canon is an important way in which we as a society validate the Supreme Court’s constitutional choices over time. It is a way of saying that certain issues are settled, even if people in an earlier era disagreed. In a system such as ours, which gives Supreme Court justices tremendous power, this is an essential check on how that power is exercised.”
The Ringhand-Collins argument is quite interesting, and it makes sense as a general proposition.
But the problem comes with the meaning of the term “settled law.” A nominee’s characterization of an issue as “settled law” may simply be the nominee’s way of acknowledging that Supreme Court rulings bind the lower courts. It does not commit the nominee to vote a particular way on future cases.
Indeed, Judge Kavanaugh seems to have taken the minimalist view of the term when he declared last week that Roe v. Wade is “settled law.” As a D.C. Circuit Court judge (his current position), Kavanaugh is absolutely bound by the Roe (and Planned Parenthood v. Casey) precedents. But the moment he is sworn in as an associate justice on the highest court in the land, he will no longer be necessarily bound by those precedents. He will be free to draw his own conclusions about the wisdom of Roe and every other Supreme Court precedent.
Thus, even if Neil Gorsuch had chosen to acknowledge specific cases as “settled law,” it probably would not have actually shed much light on his judicial philosophy. As Kavanaugh showed, it is easy for a nominee to use the term “settled law” in a way that is largely devoid of meaning.
Moreover, even in “canonical cases,” there is usually always something in the holding that could potentially be questioned down the road. For example, no case is more canonical than Marbury v. Madison, which upheld the principle of judicial review. It is the case that everybody loves. And yet, over the past 200 years, the Supreme Court has modified its Marbury holding many times. For example, the Court has developed the political question doctrine as a way to decline to review cases and controversies that clearly fall within the federal courts’ Article III jurisdiction.
Thus, even when a nominee waxes poetic about John Marshall’s ruling in Marbury and enthusiastically embraces the highly uncontroversial principle of judicial review as settled law, the nominee’s testimony provides virtually no guidance as to how the nominee will handle complicated jurisdictional issues in the future.
The End of the Lovefests
Fourth, nominees are keenly aware of the precise partisan and ideological balance in the Senate at the time of their nominations, and that knowledge naturally influences the extent to which the nominees feel free to offer opinions, even on uncontroversial and highly general topics.
During Neil Gorsuch’s hearings last year, Republicans held only a 52-48 majority, and during last week’s Kavanaugh hearings the Senate Republicans held an even smaller majority of 51-49 (as a consequence of the Alabama special election in December).
By historical standards, a 2 to 4-seat margin is a razor-thin majority. Previous nominees had much more political and ideological breathing room. For example, between Ginsburg’s hearings in 1993 and Kagan’s hearings in 2010, the president’s party always held at least a 10-seat majority at the time of the confirmation hearings. Here are the historical numbers courtesy of the U.S. Senate webpage:
Ginsburg (June 1993): 56-44 majority for the Democrats
Breyer (May 1994): 56-44 majority for the Democrats
Roberts (September 2005): 55-45 majority for the Republicans
Alito (November 2005): 55-45 majority for the Republicans
Sotomayor (June 2009): 60-40 majority for the Democrats (including Bernie Sanders, Joe Lieberman, and Arlen Specter, who became a Democrat one month before the Sotomayor nomination)
Kagan (May 2010): 59-41 majority for the Democrats (including Sanders, Lieberman, and Specter, but minus Ted Kennedy, who was replaced by Scott Brown)
The upshot is Gorsuch and Kavanaugh had less margin for error during their hearings than any other nominee in the past 25 years.
Tellingly, despite facing a much friendlier Senate than either Gorusch or Kavanaugh, the nominees between 1993 and 2010 still chose to steer far away from any controversial issue that could derail their nomination. Here, for example, is Kagan’s description of how Ruth Bader Ginsburg skated around questions during her 1993 hearing:
“Justice Ginsburg’s favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied . . . that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: “I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because . . . that scenario might come before me.’ But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: ‘I prefer not to . . . talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case.’”
The Democratic majority unquestioningly accepted Ginsburg’s patently evasive approach, leading Kagan to describe the Ginsburg (and Breyer) nomination hearings as “lovefests.”
With Senate Republicans clinging to a much smaller majority, Gorsuch and Kavanaugh understandably took an even more circumspect approach than previous nominees. But the substantive effects were minimal at best. The “vapid and hollow” nature of the Gorsuch and Kavanaugh hearings simply reflected the way that Supreme Court hearings have operated for the past 100 years.
No Mystery
But does the vacuous nature of nomination hearings really matter? Although it would be nice if nominees would be more forthright about their judicial philosophy, the fact remains we usually have a good idea of what to expect from nominees with prior judicial service.
Brett Kavanaugh is a case in point. In light of his long tenure as a Court of Appeals judge, the Senate has a strong sense of what kind of justice he will be. As his voting record and judicial opinions demonstrate, he sits far to the right of the judicial center. He will almost certainly be more conservative than Chief Justice Roberts and could even turn out as conservative as Neil Gorsuch and Clarence Thomas. Above all, Kavanaugh is unlikely to uphold any precedent inconsistent with the original public meaning of the Constitution’s text. Although the full extent to which he embraces an originalist approach is not clear (he was, after all, bound by prior Supreme Court precedents as an intermediate court of appeals judge), Kavanaugh’s track record as a textualist suggests he will likely overturn many of the 5-4 rulings in which his predecessor, Justice Anthony Kennedy, sided with the Court’s liberal members.
One final point should not be overlooked: we actually know far more about Kavanaugh’s judicial philosophy than we did about Elena Kagan’s judicial philosophy when she joined the Court in 2010. Kagan spent her career as a law professor, a law school dean, and a government attorney. Because she never served as a judge, and wrote surprisingly few law review articles during her academic career, she had almost no track record for the Senate to scrutinize during her nomination hearings. Kagan’s lack of a paper trail made her the least forthcoming nominee since David Souter in 1990, a highly ironic development in light of Kagan’s previous criticism of the opaque nature of the nomination hearings.
The bottom line is the criticism that Kavanaugh was not forthright enough during his confirmation hearings ultimately rings hollow. By historical standards, and when compared to previous nominations, the Senate has abundant evidence of what kind of justice Brett Kavanaugh will be. For any senator to claim otherwise is deeply disingenuous. One might even say that such claims are little more than a vapid and hollow charade.
Just to clarify for the sake of historical accuracy, Arlen Specter switched parties in late April 2009, one month before Sonia Sotomayor's nomination (in May 2009), not her confirmation in August 2009.
Posted by: Anthony Gaughan | September 14, 2018 at 04:31 PM
One other thing I should add is that the date of the nomination announcement and the date when the nomination is officially submitted to the Senate sometimes vary. For example, President Obama announced Sotomayor's nomination in late May 2009, but according to the U.S. Senate webpage, the nomination was not officially submitted to the Senate until June 1, 2009. But the partisan balance in the Senate did not change in the interim.
Posted by: Anthony Gaughan | September 14, 2018 at 04:41 PM
" Kagan ... and wrote surprisingly few law review articles during her academic career"
Oooh, SNAP!
Haha, just kidding.
Very interesting overview of the history of the process; thank you for writing and posting it. I do agree that the hearings are generally of little or no real use and that we usually already know everything we are going to know about a nominee beforehand.
Why do we bother? Also, one wonders how much such a vapid charade costs the government. Maybe it's not substantial.
Posted by: concerned_citizen | September 19, 2018 at 05:59 PM