a bird and a bottle

Do Confirmation Hearings Matter?
April 26, 2007, 10:21 am
Filed under: 2008, civil rights, law, news & views, politics

One of the things I’ve found particularly striking in thinking about last week’s federal abortion ban decision was how stark the contrast has been between Chief Justice Roberts’s rhetoric during his confirmation hearings and his behavior on the bench.

During the confirmation hearings, Justice Roberts promised to respect precedent, to promote judicial restraint, and to build consensus. But a recent string of 5-4 opinions betrays this promise.

So what are we to do? For me, the abortion decision as well as the other close decisions have driven home the idea that confirmation hearings are, at this point, pretty worthless. The nominees don’t really reveal anything and the hypothetical “how would you have ruled” questions don’t push them to.

TAP’s Michael Tomasky suggests that the answer is harsher hearings, with real questions about ideology and beliefs. That’s what the President uses to decide whom to nominate, Tomasky reasons, so why shouldn’t the Senate consider these issues too. He writes:

So, next time, what should Democratic senators on the Judiciary Committee do? They cannot ask the next Bush nominee, if there is one, how he or she would have decided on X. That’s a weak invitation to an easy side-step: I can’t say, didn’t read the briefs, et cetera.

What they need to do is ask such a nominee what he or she believes, using real-world examples. This fiction that judges have no beliefs and only interpret law this way or that way is transparent. Democrats need to say so and press hard for a nominee’s beliefs.

The Court is about to hear cases from Louisville and Seattle on school integration. A true conservative should support integration in this case, because in both localities the policy was set by legislatures (the direct representatives of the people) at the local (that is, non-federal) level. Democrats must ask a nominee, well, which are you more committed to? Local legislative decisions, or aversion to racial remedies of any sort

Such a move could be a double edged sword; it could be political suicide for the democrats but would help ensure that we’re not getting any rude surprises once people are appointed the Court. That said, Justice Stevens, now one of the most liberal justices on the Court (and god love him, the oldest), was appointed by a Republican as a conservative. So maybe surprises are just part of the game.

I’m curious — what do you all think?


14 Comments so far
Leave a comment

There are many problems with what you are proposing. First of all, do you really want a politician as a judge? Think about it. If we grill nominees for their political beliefs, you will lose great judges who don’t want to go through that process, and that will leave the ones who won’t mind the spotlight. Do you want a judge who will JUDGE based on EXISTING law, or one who will cave into public pressure like a politician?

The Congress’ only job with nominees is to make sure they are qualified to judge, not to see if the judge agrees with a party’s politics. Democrats have changed that, dare I say, unconstitutionally. Both Ginsburg and Roberts are qualified judges. The Republican majority may not have liked the way Ginsburg judges, but she was qualified and they approved her something like 95 or more. Roberts? 75 or something like that. Pure politics, and deplorable.

Comment by Rob V.

Rob V. – I think you make good points, but I want to be clear that I’m not endorsing Tomasky’s propsal. I’m simply asking, what might be a way to make the confirmations either about ideology or not. Today they’re somewhere in the middle and they’re not good at sussing out information about qualifications or politics.

Comment by bean

I think the days of surprise republican appointees are long gone. the demands from the (religious) right are too great and too focused on the courts to have another Stevens or even another Souter.
I think that Rob V’s concern about the politicization of the nomination process is largely bunk. Was any nomination process more conspicuously unpleasant than Thomas’s? After “pubic hair on coke cans,” it’s hard to see how “local government vs. racial remedies” is going to steer great judges away from a potential seat on the Supreme Court.
I strongly agree with Tomasky that confirmation hearings have to change – because nominations have changed. Thomas, Roberts and Alito are all young and highly ideological. They will change American jurisprudence for an entire generation. If another president attempt to stock the court with young ideologues, s/he should know that it will cost him/her an enormous amount of political capital. The hearings are perhaps the only mechanism by which to make that clear.
Let’s be honest: Bush’s appointees have been made only with the interests of the right wing in mind. They were pure politics. Ironically, the only way to make the nomination process less political in the long run may be by making the nomination hearings a lot more political first.

Comment by professorplum

rob – i hear your point on the congress sticking to it’s job, but at this point do we really think judges aren’t politicians?

bean – i think you’re right that we’re stuck in some sort of swampy middle ground where judges have to be political enough to receive the nod from the pres, but still appear apolitical enough to slide past tough questions in the senate.

not sure where that leaves us… i think we have to acknowledge that judges are political, but i def wanna avoid mudslinging at confirmation hearings.

Comment by maxwell


Of course Thomas’ hearing was unpleasant – because it was political! The dems didn’t want him on the court and they tried to bring him down.

And what’s so “ideological” about judging the law for how it’s written, not what it “might say?” I WANT strict constitutionalists on the court, no matter what party appointed them. I’m terrified that Ginsberg and Souter reference foreign law in their decisions. This is the U.S. for crying out loud!

Comment by Rob V.

And what’s so “ideological” about judging the law for how it’s written, not what it “might say?” I WANT strict constitutionalists on the court, no matter what party appointed them. I’m terrified that Ginsberg and Souter reference foreign law in their decisions. This is the U.S. for crying out loud!

Oh, Rob. If only strict “constitutionalists” actually did judge w/o ideology. They view the law through their own ideologies. Oh, and if they were strict constructionists, they would have voted to strike down the abortion ban last week, being that it stretches the commerce clause and all.

Also, the whole “we’re the US and shouldn’t consider foreign law” thing is so silly I don’t even know how to respond. Maybe that could be said in 1800, but in today’s globalized world it would be suicide to ignore international law and opinion . No one is saying that foreign law should decide American cases, but the notion that we should be mindful of the rest of the world, especially when we make it our business to consistently meddle in theirs, seems to make a whole lot of sense.

Comment by bean

I’m terrified that Ginsberg and Souter reference foreign law in their decisions.

They don’t “reference foreign law.” One of the arguments the defense used in Lawrence v. Texas was that homosexuality was condemned throughout Western civilization, so it made no sense to strike a law that criminalized gay sex. Ginsburg found that this argument was weak because in other Western countries homosexuality was legal.

The dems didn’t want him on the court and they tried to bring him down.

Yeah, and they failed. That’s the main reason I think Tomasky’s wrong – he’s assuming the Democrats have any serious interest in having liberal or even moderate Supreme Court justices. In fact the issues decided by the courts are low-priority for Democrats: abortion, capital punishment, affirmative action, gay rights, even torture.

Comment by Alon Levy

Alon – I think you are right that the courts are not a high priority for your average democrat. (Does an average dem have any high priorities?) But they are a priority for engaged democrats. And the more the right wing tries to usurp the court, the more it’ll become a major issue.
In truth, though, with one party rule and two open seats, what more could we expect? Despite what I posted earlier, the answer may be less politicizing the nomination process than gaining/keeping control of the political levers.

Comment by professorplum

What I mean by “Democrats” is “Democratic politicians and party leaders.” It’s probably structural; Dean only started fellating the religious right once he became DNC chairman. For other Democratic leaders, abortion is little more than a political hatchet they sometimes use, as evidenced by the fact that Reid criticized the Supreme Court ruling even though he had voted for the ban in the Senate.

And I don’t think the grassroots are much better. When Kos stood at the podium at the convention center last June and told 1,000-odd Yearly Kos participants and said that the Democratic Party’s issues were health care, education, Iraq, and domestic spying, and everything else was a distraction, he got a standing ovation.

Comment by Alon Levy

We should be more specific: The politicians on the supreme court are the most conservative judges. The five most conservative judges in 2000 injected themselves into the political process in a nakedly partisan way, making a decision with absolutely no basis in law; one that was so laughable they refused to sign the decision and declared that it had no precedential valuable. After this, Republican bluster about “strict constitutionalists” and politicizing the court is just hot air.

Comment by Matt Weiner

“valuable” s/b “value”

Comment by Matt Weiner

Can we all agree that “People who interpret the Constitution without injecting politics” is always synonymous with “judges who uphold laws I support and strike down laws I oppose”?

Comment by Alon Levy

Alon – Yes. What I was trying to say to Rob. I don’t deny that the judges I lik euse their own values to interpret the Constitution. I think it’s impossible, frankly, for judges not to.

Comment by bean

It might be possible… but it requires getting around bugs in the Constitution concerning judicial appointments, which means it’s not going to happen.

Comment by Alon Levy

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