Confirmation Messes, Old and New

Abstract

What confirmation mess? Stephen Carter's new book decries the state of the confirmation process, especially for Supreme Court nominees. "The confirmation mess," in Carter's (noninterrogatory) phrase, consists of both the brutalization and the politicization of the process by which the nation selects its highest judges. That process, Carter insists, is replete with meanness, dishonesty, and distortion. More, and worse, it demands of nominees that they reveal their views on important legal issues, thus threatening to limit the Court "to people who have adequately demonstrated their closedmindedness" (p xi). A misguided focus on the results of controversial cases and on the probable voting patterns of would-be Justices, Carter argues, produces a noxious and destructive process. Carter's paradigm case, almost needless to say, is the failed nomination of Robert Bork.

“No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan

“…We begin with the central question driving this study: Has nominee candor simply decreased over time? As confirmation battles have become scrutinized more closely by the media pundits, and those with partisan and ideological interests more firmly entrenched in their camps, the conventional wisdom among scholars and Court watchers suggests that the level of evasiveness has also increased (e.g., Benson 2010;Comiskey 1994;Kagan 1995). On the basis of this body of existing work, therefore, we hypothesize that (H1): The level of nominee candor will decrease over time.…”

Can Structural Changes Fix the Supreme Court?

“…Ginsburg withdrew his own name from consideration after he admitted that he had smoked marijuana several times while a professor at Harvard Law School. of the confirmation process arguably leads to a court whose members' views have been interrogated-and in this way legitimated-by the people's elected representatives (Kagan 1995). Thus the period from 1894 to 1967, in which the Senate routinely rubber-stamped the president's appointees, should not necessarily be considered a golden age.…”

How uncertainty about judicial nominees can distort the confirmation process

“…Reinforcing the difference in information is the fact that the Senate’s primary information-gathering device, the confirmation hearing, provides little insight into candidates’ judicial philosophies (Eisgruber, 2009). Indeed, nominees to the courts routinely invoke judicial prerogatives to keep views before the Senate private (Lively, 1985; Ringhand, 2008; Strauss and Sunstein, 1991; Totenberg, 1987), a practice that has engendered significant criticism (Eisgruber, 2009; Kagan, 1995; Post and Siegel, 2006; Turley, 2005, 2009; Watkins, 2010). Ruth Bader Ginsburg, who began her hearings by vowing to provide “no hints, no forecasts, no previews,” set the modern standard of judicial evasiveness before the Senate and thus lends her name to the so-called “Ginsburg Rule.” All subsequent nominees have invoked some form of the Ginsburg Rule; John Roberts, for example, explicitly cited the Ginsburg Rule 10 times in his confirmation hearings (Sarat, 2008).…”

“…Nominees are also highly selective of what views they share, being more likely to invoke the Ginsburg Rule on controversial issues such as reproductive rights or executive power (Ringhand, 2008). Even Elena Kagan-who wrote in her pre-nomination days as a law professor that the Senate had ceased ''to engage nominees in meaningful discussion of legal issues'' and that the confirmation process was little more than ''a vapid and hollow charade'' (Kagan, 1995)-refused to answer questions at her hearings on the grounds that a nominee simply ''has to be protective of certain kinds of interests'' (Nomination of Elena Kagan, 2010).…”