Why Supreme Court Confirmation Hearings Matter Less Than You Think
By CHRISTOPHER L. EISGRUBER
|Tuesday, July 28, 2009|
Sonia Sotomayor's confrontation with the Senate judiciary committee is now complete, and her confirmation appears assured. Commentators are deep into the post-mortem phase: What worked at the hearings? What didn't? And what do the hearings mean for future Supreme Court nominations?
Professor Vikram Amar did a great job answering the first two questions in a Findlaw column last week. I'm going to focus on the last one. The answer is simple: The Sotomayor hearings tell very little about what to expect the next time there is a vacancy on the Supreme Court.
Indeed, despite the attention they get, the hearings matter much less than people suppose. They are the most visible part of the appointments process, but they are far from the most important part. As a result, the Sotomayor hearings' implications for future nominations and confirmations are virtually nil.
Most Nominees Have No Incentive to Reveal Their Views
One person who spoke bluntly about the limits of the confirmation process was Senator Lindsey Graham of South Carolina. Graham established himself as a savvy player, able to speak to his conservative base while simultaneously reaching across the aisle in strategic ways. He also occasionally told the unvarnished truth, which was a refreshing exception to the coy double-talk that dominated the hearings.
Graham greeted Sotomayor by telling her, "Unless you have a complete meltdown, you're going to be confirmed." This remark earned Graham the reproach of some pundits who claimed that the word "meltdown" was gendered. Graham deserves credit, though, for telling it like it is: With the Democrats firmly in control of the Senate, Sotomayor was going to win confirmation unless she self-destructed in front of the committee.
Indeed, despite the tense atmosphere of confirmation hearings, the odds are usually in the nominee's favor. About 85% of nominees to the Supreme Court have been confirmed. The numbers get even better when, as now, the president's party controls the Senate. Conversely, nominees become vulnerable when the opposition party controls the Senate or when the president is unpopular or a lame-duck nearing the end of his term.
When a popular president's party holds a dominant 60-40 margin in the Senate, "no meltdown" is a good description of the low bar his nominee has to clear. Judge Sotomayor had no incentive whatsoever to engage the senators in an extensive discussion of constitutional issues. Nor did she have any cause to try to improve upon the jurisprudential views of prior nominees like John Roberts, who professed that constitutional adjudication was just like calling balls and strikes in baseball. Be polite, demonstrate your competence, maintain your composure—those were Judge Sotomayor's objectives. She executed perfectly.
Senators Typically Do Not Need Hearings to Assess the Nominee's Qualifications
As Senator Graham realized, confirmation hearings do not matter much unless the nominee is vulnerable to start with. He also exposed the second reason why the hearings matter less than people commonly suppose: Senators usually do not need the hearings in order to form a judgment about the nominee's qualifications for the Court.
Toward the end of the hearings, Graham offered the following summation of Judge Sotomayor's jurisprudence: "To be honest with you," he said, "your record as a judge has not been radical by any means. You have, I think, consistently, as an advocate, t[aken] a point of view that was left of center. You have, as a judge, been generally in the mainstream."
That evaluation almost certainly gets it right—Judge Sotomayor will be on the Court's liberal side, but hardly a radical. What is remarkable is that Senator Graham arrived at this assessment only after multiple days of unilluminating testimony. As Professor Amar noted in his column last week, the hearings followed a script that is by now familiar, if not numbing. Senators asked clever questions about affirmative action, identity politics, guns, and the Takings Clause. Judge Sotomayor answered respectfully, demonstrated her mastery of the relevant doctrine, and revealed nothing about the values that guide her jurisprudence.
Indulging the Fiction that Justices' Values Are Irrelevant to their Judging
Worse yet, both the senators and the nominee indulged the fiction that Supreme Court justices can resolve cases simply by applying the law, and without invoking controversial values or judgments. That's baloney, and every lawyer knows it. The Supreme Court takes only cases about which reasonable lawyers can disagree. If justices could resolve those cases without recourse to values, none of us would care so much who sat on the Court.
The only reasonable question to ask about a Supreme Court nominee is how her values and experiences will affect her jurisprudence. The Sotomayor hearings—like many previous ones—featured a conversation about whether the nominee would allow her values and experience to influence her interpretation of the law. That starting point guaranteed that the hearings would produce no useful information about Judge Sotomayor's judicial philosophy. Call it a kabuki dance or a subtle minuet or just a mess—however you describe it, it's not very edifying.
Yet, at the end of it, here was Senator Graham with a pretty clear picture of the nominee sitting in front of him. Now, of course, he (and I) could be mistaken—maybe Sonia Sotomayor will turn out to be the next William J. Brennan. Maybe she will evolve after she reaches the Court. But of course she might have evolved after reaching the Court even if she had treated the Senate to an extensive discussion of her current views.
Senator Graham did not need the hearings to figure out what kind of judge he was being asked to confirm. Sonia Sotomayor has a seventeen-year judicial track record, and it is the record of a moderate liberal. Her most controversial decisions—in Ricci v. DeStefano, the so-called "white firefighters" case, and other cases—were in cases in which she deferred to elected decision-makers, not cases in which she discovered new constitutional rights.
Although these Hearings Did Not Matter, Future Hearings Could Be Decisive – and Thus Very Different
Judge Sotomayor had more years of federal judicial experience than any other nominee in Supreme Court history, so she may be an extreme case. The reclusive David Souter was at the opposite end of the spectrum. Still, for the most part, senators know a great deal about any nominee before he or she appears in the hearing room. For that reason, even in the rare cases when a nominee's confirmation is in doubt, her testimony is often unnecessary for the Senate to reach a judgment. Accordingly, Supreme Court confirmation hearings matter less than most people think.
In the right circumstances, however, these hearings could matter a great deal. When a confirmation is in doubt, the Senate has more power to extract real answers from a nominee. If a nominee's record tilts toward the doctrinaire, she will have an incentive to persuade the Senate that she is in fact only a moderate liberal or moderate conservative. Put those circumstances together, and all bets are off—the precedents set by the Sotomayor hearings will mean nothing. Then, you would have a recipe for a real conversation about the Constitution and the Court—a political, partisan, and bruising conversation to be sure, but also a more honest and searching inquiry than the one we saw earlier this month.
Until that happens, though, be ready for more kabuki next time around. And as you watch, keep in mind that what you are seeing is probably the least important part of the appointments process.
Christopher L. Eisgruber is the provost of Princeton University, where he also serves as the Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values. His most recent book is The Next Justice: Repairing the Supreme Court Appointments Process, published by Princeton University Press and released in paperback in June 2009.