Supreme Court hearings are broken, both parties say. How they can be fixed

One hundred years ago, they didn’t hold confirmation hearings for the United States Supreme Court.

Backlash to Louis Brandeis’ nomination – fueled in part by his Jewish faith, scholars say – led the Senate to hold its first ever public confirmation hearing for a high court nominee in 1916. Justice Brandeis himself wasn’t required to speak, but the precedent had been set.

Hearings became routine. In 1939, Felix Frankfurter became the first nominee to testify at his own confirmation hearing. In those hearings, Justice Frankfurter declined to answer many questions, saying his public record spoke for itself.

In many ways we have returned to those times, experts say, if we ever left them at all. In recent decades, members of the Senate Judiciary Committee have pressed nominees to discern their views on how they would rule on hot-button issues – with little to no success.

This approach has become so common that Judge Brett Kavanaugh, the nominee to replace retired Justice Anthony Kennedy, said in his own hearings this week that it established a precedent for nominees that “is now in my view part of the independence of the judiciary.”

Judge Kavanaugh said on Wednesday he studied the hearings for Justices Thurgood Marshall and William Brennan, as well as the eight current justices. They almost unanimously declined to discuss past high court decisions beyond saying they are “settled law” – and sometimes not even saying that. They claimed that to do so would amount to prejudging cases they might later hear.

“Why have eight justices, of widely ranging views, done this? The reason is judicial independence,” he added.

As a result, scholars say Supreme Court confirmation hearings in recent years have yielded little useful information. Senators of both parties accuse the other of being either too soft or too tough. Both agree the process has become broken. These issues are compounded by increased partisanship on the court, some say, with Republican- and Democrat-appointed justices often voting as blocs on hot-button issues.

How nominees answer (or don’t answer) questions in confirmation hearings is both a symptom and a cause of larger institutional problems, experts say. But experts say there are examples from the past that could foster greater insight – and greater civility. One important first step: Nominees answering questions in more detail. Some scholars think nominees would be able to speak more freely if senators asked more general questions, such as about a nominee’s judicial philosophy. Others believe the political branches could ease tensions by returning to more bipartisan consultation in picking a nominee, as happened in the 1990s.

The current process “doesn’t really generate much information about what the nominee thinks about important legal issues, and I think everybody knows that,” says John Harrison, a professor at the University of Virginia School of Law.

“The court is a powerful institution,” he adds. “This is an important political process, and I think it’s bad for the country that less information is available.”

ROBERT BORK’S NOMINATION

Today’s Supreme Court confirmation process can be traced back to the failed nomination of Judge Robert Bork in 1987, most scholars say.

Judge Bork, a judge on the D.C. Circuit with a record of controversial legal opinions disputing Supreme Court decisions on issues such as gender equality and workplace desegregation, explained in detail his philosophy that the Constitution should be interpreted only as its writers intended. After the Senate voted 58-to-42 against his confirmation, he said he was “glad the debate took place.”

“Since [then] I don’t think we’ve seen people be that direct and that straightforward…. We’ve got into a pattern of more general answers,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

Senate Republicans this week said that Justice Ruth Bader Ginsburg specifically established the pattern of evasive answers seen in high court confirmation hearings, saying in 1993 she would offer “no hints, no forecasts, no previews” on how she would rule on cases that could come before her.

Since then, nominees have taken a similar line, adding that they respect Supreme Court precedent and stare decisis, a principle that the justices should follow high court precedent except in exceptional circumstances.

“The American people don’t want their judges to pick sides before they hear a case.… This is the reason why all Supreme Court nominees since Ginsburg have declined to offer their personal opinions on the correctness of precedent,” Sen. Chuck Grassley, (R) of Iowa, said in his opening statement.

Senate Democrats have complained this week that, while recent nominees have voiced their respect for settled law, once they get to the court they have voted to overturn or severely narrow precedents. In an interview with NPR on Wednesday, Sen. Sheldon Whitehouse, (D) of Rhode Island, cited rulings on campaign finance, voting rights, and public union fees as examples of “big decisions completely unsupported under precedent.”

The Supreme Court under Chief Justice John Roberts has overturned 1.38 cases per term – a lower rate than three prior courts dating back to World War II, according to a recent analysis by Jonathan Adler, a professor at Case Western Reserve University School of Law. Other research has found that the Roberts court has narrowed past rulings, including on issues such as abortion and juvenile life without parole, though not significantly more than other courts.

Justice Kennedy provided the deciding vote in several Roberts court cases overturning precedent, including the 2015 Obergefell v. Hodges decision legalizing same-sex marriage and June’s Janus v. AFSCME decision finding public union fees unconstitutional. Expecting a nominee more ideologically conservative than Kennedy (which Kavanaugh is, according to most experts and statistical analyses), Professor Adler predicted that “the Roberts Court is not likely to overturn precedents at a more rapid clip going forward.” Where it does, though, he added, “it may tend to do so in a more conservative direction.”

SETTLED LAW … OR CORRECT LAW?

One precedent has been brought up repeatedly at this week’s hearings: Roe v. Wade, which legalized abortion in 1973. Sen. Dianne Feinstein, (D) of California, asked Wednesday if Kavanaugh thought Roe is “correct law.” And she asked again Thursday, citing a 2003 email, leaked to The New York Times, where he said it was not settled law because three justices at the time would have overruled it.

“Roe v. Wade is an important precedent of the Supreme Court, it’s been reaffirmed many times,” he answered. “That precedent on precedent is quite important as you think about stare decisis in this context.”

“You believe it’s correctly settled. But is it correct law in your view?” Senator Feinstein asked.

Kavanaugh replied: “I have to follow what the nominees who have been in this seat before have done.”

There were many yes-or-no questions like Feinstein’s from Democrats. Some scholars think nominees would be able to speak in more detail if senators asked more general questions about a nominee’s judicial philosophy.

The Constitution “gives substantial discretion [to judges] over how its ambiguous portions are interpreted,” says Professor West-Faulcon. “It would help a senator to know … what their judicial philosophy [on giving] meaning to ambiguous portions of the Constitution is.”

Of course, explaining his judicial philosophy is part of what cost Bork his confirmation. So some experts say the political branches could ease tensions by doing more bipartisan consultation in picking a nominee.

President Bill Clinton’s work with Sen. Orrin Hatch (R) of Utah on confirming Justices Ginsburg and Stephen Breyer is an oft-cited example. Senator Hatch recommended both, writing in his biography that “while liberal, they were highly honest and capable jurists [and] likely better than the other likely candidates from a liberal Democrat administration.”

Both Ginsburg and Justice Breyer were confirmed comfortably.

“There was some meeting of minds and some deference,” says Carl Tobias, a professor at the University of Richmond School of Law and an expert in judicial selections. “That sounds a little old-fashioned these days.”