Kagan Critique of Process Intact

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.

Kagan v. Senate Judiciary Comittee

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied in practice, “by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.

Reality TV: The Senate Judiciary Committee Confirmation Hearing

Reality TV—purposive role-playing using contrived narratives purporting to show people in real-life situations. Wait a minute! That sounds like a Senate Judiciary Committee confirmation hearing. Indeed, the Senate can lay claim to having invented reality TV back in 1981 with the televised hearing for Sandra Day O’Connor’s confirmation. Now after a hiatus of more than three years, the Alito hearing of 2006, we have the Confirmation Hearing of Sonia Sotomayor, a four-day mini-series beginning July 13.

As show time nears, each of the committee’s 19 senators has one or more aides busily creating the senator’s script, an opening statement along with questions that the senator can ask the nominee. Development of this script is guided largely by what role the senator has defined as appropriate for this nomination. If you want to make sense out of what otherwise may appear as a mind-numbing, largely repetitive set of statements and questions, it helps to analyze what role you think the senator is playing and how he or she implements that role. Past nominations have revealed four roles commonly adopted by senators. You may be able to identify others.

Role selection is typically a function of two variables: one’s initial view of the nominee, which itself is usually a matter of party and ideology, and whether the nomination is perceived as controversial. Despite the Supreme Court’s recent decision in the Ricci case, the Sotomayor nomination has not achieved controversial status, meaning that her confirmation is certain, barring of course some hike on the Appalachian Trail.

You might think that the purpose of the hearing is to allow senators to gather information so they might decide whether to confirm or reject the nominee. A senator in that position plays the role of an evaluator, asking questions of the nominee that will address those key issues critical to the senator’s vote. Similarly, the opening statement will reflect the importance of the hearing and the nominee’s performance in helping the evaluator come to a decision. Never was that more clearly stated than by Jeremiah Denton when he told nominee Sandra O’Connor, “Your answers at this hearing . . . will determine my estimate of your position . . . and I will base my single vote on those responses.”

True evaluators in the confirmation hearing are rare, however. Senators have already spoken privately with the nominee and have gathered file drawers full of information about her. Most, therefore, come to the hearing with a sense of how they will vote. That being the case, then what are these senators going to do with their time?

One option is to choose the partisan role. A positive partisan supports the nomination and will use the opening statement to praise the nominee and build the case for confirmation. Questions to Sotomayor from the positive partisan will allow her to showcase her judicial temperament, expertise, intelligence, philosophy, and compassion. The negative partisan seeks to sink the nomination and uses the opening statement to construct the nominee as ill-suited to be a justice. Subsequent questions will attempt to discredit, embarrass, and otherwise show the nominee’s lack of fitness to serve on the Court. The difference between the positive and negative partisan was in stark contrast with the same nominee, Robert Bork. Republican Orrin Hatch opened by saying, “ I feel honored to welcome to the committee one of the most qualified individuals ever nominated to serve on the United State Supreme Court.” Democrat Ted Kennedy followed by asserting, “ Robert Bork falls short of what Americans demand of a man or woman as a justice on the Supreme Court.” The questions from these two senators clearly established their playing the roles of positive and negative partisan.

Whereas the partisan’s vote is already certain and questions are designed to help or hurt the nominee, the role of validator is played by one who is pretty certain about how he or she will vote and uses the hearing to confirm that expectation. Unlike the partisan, though, the validator asks questions to overcome any nagging doubts, any concerns that remain before confirming the decision to support or oppose the nomination. Clearly illustrative of this role is Senator Metzenbaum’s opening statement in Antonin Scalia’s hearing: “There can be little question about the fact that he is qualified for the position of association justice. My only area of concern relates to some of the views Judge Scalia has stated in a number of critically important areas.”

In the Sotomayor hearing, we shall surely see Democratic positive partisans making the case for her confirmation and helping her put her best foot forward. Nothing yet indicates any Republican senator plans to pursue a negative partisan role. Some Republicans may be true evaluators, using the hearing to come to a decision about their own up or down votes. A number of Republicans are likely to be validators, checking on key aspects central to their view about what a justice should be.

These three roles, however, don’t capture the behavior most likely to be evident. One can engage in partisan play only for so long, while evaluators and validators determine at some point what they came into the hearing to find out. These individuals then join others who adopted a fourth role, an advocacy role that manifests itself in a number of apparently different behaviors. Advocates have a message and a target for that message. The obvious target, of course, is the nominee. Thus, Senator Kennedy pursued the topic of civil rights with Chief Justice nominee John Roberts, attempting to secure concessions from him regarding the “irreversibility” of progress in civil rights over the past 50 years. Senator Grassley sought assurances from Roberts that the courts may not take initiatives to solve societal problems when the political branches are slow to act. Joseph Biden tried to persuade Sandra O’Connor that as the first woman appointee to the Court she could (and should) speak out on women’s rights.

Advocates may also target others, including fellow senators or their constituents back home. Advocacy is less about confirmation than it is about the senator demonstrating his or her earnest concern about certain issues and attempting to educate, advertise, and persuade or otherwise cajole the target into an appreciation of the senator’s position. Senators need to impress, but when you are thirteenth, fourteenth, on down to nineteenth in line for asking questions, it’s not easy and the advocacy role may be all that’s left to play.

So enjoy the mini-series, even though a surprise ending does not seem to be in the works. See if you can identify what role each senator is playing, observe shifts in role during the course of a senator’s questioning, and assess exactly what it is the senator is trying to accomplish in asking each particular question. If you would like to get a more complete description of these roles and examples of their application, go to the site “A Vacancy on the Court” at http://supremecourt.ws/sjc.html, the page on the Senate Judiciary Committee.