Confirmation Hearings: If I Were a Senator…

On Monday, I suggested that Supreme Court confirmation hearings would be more productive if senators were disabused of two misconceptions:  (1) that judging at the Supreme Court level is mechanistic and computer-like, and (2) that the Court should not and does not make policy. CoOp contributor Dave Hoffman noted:

I’d be surprised if anything you wrote were to surprise them. The reason that most commentators find the hearings to be a charade isn’t because the senators have one view of the constitution (shared by the public) and legal “elites” have another. It’s that everyone involved in the process knows the game but has to play anyway.

For the most part, I agree with Dave. And at the beginning of my post, I noted that these misconceptions are “either sincerely held beliefs, beliefs based on ignorance, disingenuous devices for hammering the nominee and scoring political points,” or a combination of the three. Dave’s view comes closest to the third — political posturing, “playing the game” in a disingenuous fashion. I will say this: I sometimes get the sense that some senators sincerely believe in the depictions (what I would call misconceptions) that they advance. One would have to get in senators’ heads to know their true motivations for advancing these misconceptions. But the bottom line is that they do advance them consistently.

Dave Hoffman also asked,  “What, in your view, is the proper role for the hearings?” This is a great question. The fundamental dilemma senators face is getting nominees to talk substantively about law and judging without having them discuss issues that might come before the Court in the future. If I were a senator, I would want to ask about the following issues. There are certainly others, but these are at the top of my head:

1.  Factual knowledge about legal development and case law:  One could certainly tap the nominee’s knowledge of existing case law and historical legal development in certain areas in order to get a nominee at least talking about more specific issues of law and legal doctrine, e.g., development of legal doctrine in free speech and other civil liberties issues, changes in commerce clause jurisprudence, modes of statutory interpretation, and so forth. Via this exercise, senators could get some sense of how the nominee thinks about legal issues and what s/he thinks are the most important features of case law over time.

2.  Legal reasoning:  How do you deal with gray area in the law? What do you do when “the law” does not provide a clear answer in a particular case? Since the Supreme Court takes “hard” cases with considerable gray area, there are often legitimate legal justifications for both sides of the case. What do you do in these situations?

3.  Overturning precedent:  Under what conditions does and/or should the Supreme Court overturn precedent? What are the relevant considerations at play? There was some good discussion of this yesterday during Senator Coburn’s questioning.

4.  Intricacies of legal doctrine and precedent:  In the area of constitutional law with respect to civil liberties and civil rights, I would want the nominee to talk about the strict scrutiny, intermediate scrutiny, and rational basis standards in a factual sense first. Then, more specific questions on application. How do justices know which standard to apply to different classifications or case facts? Under what conditions (if any) can strict scrutiny be overcome? Define a “compelling governmental interest.” How does one implement the intermediate scrutiny standard to a set of facts? Regarding rational basis, what passes for a “reasonable” or “legitimate” governmental interest? Aside from constitutional law, senators could ask the nominee about theories of statutory interpretation. By what methods do justices ascertain the meaning of a statute? What considerations are at play in statutory interpretation?

5.  Certworthiness:  What considerations do justices face when deciding whether to grant cert to a case? This was discussed quite well yesterday, and Kagan gave some good answers re: conflict in the circuits, when a circuit court strikes down a law as unconstitutional, etc. What other factors would the nominee look to in order to decide which are the most important cases?

6.  Oral arguments:  What information would you want from lawyers at oral arguments? What is the ultimate informational value of oral arguments?

7.  Opinion writing:  What would be your style of opinion writing? How would you approach writing a majority opinion? What is the primary function of an opinion (re: a guide for lower courts)?

8.  Ideology and discretion:  Since the cases that come before the Court contain a great deal of gray area, a justice has significant discretion to use his/her judgment to decide a case. How do/should justices use that discretion? Why do justices disagree on legal interpretation? What are the foundations of that disagreement? Why do disagreements about legal issues on the Court typically split along ideological lines? Does this mean that policy preferences are influential in decision making? Of course, nominees will never say that their ideological or policy preferences influence their decisions (as was apparent from yesterday’s questioning). These questions would be designed to get the nominee to talk about ideology in a more indirect way.

I realize that even these questions, though they do not ask the nominee to comment on cases that may appear before the Court in the future, may not elicit the type of substantive discussion that I think should be the goal of the hearings. But this would be a start, I think. And actually, in watching the hearings yesterday, I thought there was a moderate degree of substantive back-and-forth between senators and Kagan. I think these hearings have been much more informative than the Sotomayor hearings.

Photo credits:  Luke Sharrett/The New York Times

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1 Response

  1. Howard Wasserman says:

    But # 2 gets at the whole current problem. Republican Senators refuse to acknowledge that there is any gray area or any area in which “the law” does not provide that clear answer (Sen. Kyl asked this very question yesterday during the empathy/”law all the way down” exchange). Any nominee who even acknowledges gray area would be tagged an outside-the-mainstream liberal activist, grounds not only to oppose but also to filibuster. So the question cannot be asked or answered under the current (unfortunate) political ground rules.

    Kagan came close yesterday, insisting there are times it is difficult or not clear. But she came back to “It’s law all the way down.”