Supreme Court Nomination Hearings: An Across the Board – High Stakes – Charade
By David Van Taylor
Ever since Robert Bork’s 1987 Supreme Court nomination went down in flames, many have worried that the modern Senate confirmation process is “too political.” The specific concerns, and the proposed remedies, vary widely. In his book, The Confirmation Mess, Yale Law professor Stephen Carter suggests that senators probe too deeply into nominees’ substantive views, thus creating contention and undermining judicial independence.
A review of Carter’s book contains perhaps the most forceful and persuasive articulation I’ve heard of the opposite view: that the fundamental trouble with most confirmations is that they are not probing or substantive enough.
"[T]he most striking aspect of the debate over the Bork nomination was not the depths to which it occasionally descended, but the heights that it repeatedly reached …. The debate focused not on trivialities (Carter's “ethical molehills”) but on essentials: the understanding of the Constitution that the nominee would carry with him to the Court.
"In fact, the placement of this decision in the political [elected] branches says something about its nature—says something, in particular, about its connection to the real-world consequences of judicial behavior …. The President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument."
The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues.
If you’ve been following the news, you know that review’s author was none other than Elena Kagan, the current nominee to the High Court. Cynics will not be surprised to learn that Kagan recently recanted these views. A White House official explained that “the passage of time and her perspective as a nominee had given her a … respect for the difficulty of being a nominee, and the need to answer questions carefully.” Reporters at the briefing laughed.
What we can expect from the Kagan confirmation hearings, and what we’ve seen thus far, is, sadly, what we’ve gotten from almost every confirmation since Bork: not much at all. John Roberts’ hearings, featured in my forthcoming documentary "Advise & Dissent," is a case in point. With his winning smile, Roberts—whose right-wing credentials before and after the hearings are impeccable—parried substantive questions and vowed “judicial modesty,” likening his role to an umpire who would just call the legal balls and strikes. Then-Senator Joe Biden called it a “kabuki dance.” Even conservative activist Manny Miranda, who took us behind the scenes of the campaign to move the Court rightward, declared his frustration with Roberts’ “vanilla” strategy.
It’s a bipartisan phenomenon. Ginsburg, Souter, Sotomayor, Kennedy … all presented themselves, to the extent their “paper trail” permitted, as some variation on the Vanilla Kabuki Umpire. Clarence Thomas, in a particularly impressive reach, avowed that he had never in his life “personally engaged” in a substantive discussion of Roe v. Wade.
Make no mistake, this is an across-the-board charade. Judicial modesty is important. But judges bring values and experience onto the bench with them, and those inevitably come into play—especially on the hardest cases. When they were both on the DC Circuit, Ruth Bader Ginsburg and Robert Bork voted the same way about 91% of the time. But those other 9% made all the difference in the world.
In fact, the Vanilla Kabuki Umpire pose is a near-Orwellian inversion of the truth. Judicial nominees aren’t hiding their views to prove that they can put them aside when they don their robes. They’re concealing them precisely because we all know those views will make a difference in how they dispense justice. With the stakes so high, they just don’t want to open themselves to attack from the other side.
But the younger Kagan had it right: we need to know. Right now, there are enormous Constitutional issues up in the air. To what extent do corporations have the rights of persons? Where in the world do habeas rights apply, and where don’t they? Can Congress check the President’s Article II executive powers in any meaningful way?
If confirmed, what Kagan believes about such fundamental questions (irrespective of specific future cases) will make a huge difference to America and Americans. To exercise their duty of Advice and Consent responsibly, Senators need to ask such questions, and they deserve real answers.
Elena Kagan is the former dean of America’s most prestigious law school; she has been nominated by Pres. Obama, a former professor of Constitutional law. In her review of The Confirmation Mess, Elena Kagan called the Bork hearings an exemplary “national seminar on Constitutional law.” For the good of the country, I hope she’ll emulate Judge Bork at least a little, and engage in a serious, candid discusson of her judicial views.
David Van Taylor is director of Advise & Dissent, filmed behind the scenes of the confirmation wars of Samuel Alito, Harriet Miers and John Roberts. The Brennan Center hosted a preview in late June. Van Taylor is organizing First Monday screening events at law schools around the country, as the first step in a grassroots campaign to reform the judicial-selection process.