How to Fix Judicial-Confirmation Hearings

POLITICS & POLICY
Supreme Court nominee Judge Amy Coney Barrett (at left) on the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill, October 13, 2020. (Erin Schaff/Pool via Reuters)

Reforms to the Senate Judiciary Committee’s procedures and a loosening of the so-called Ginsburg Rule would greatly improve the process.

Adam J. White, a resident scholar at the American Enterprise Institute who serves as executive director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State, writes in the Washington Post that Supreme Court confirmation hearings are “indispensable.” White contends that hearings are worth preserving because they provide nominees with the opportunity to demonstrate the requisite legal acumen, and Americans with a chance to at once “focus their minds on the Constitution,” and have their voices heard “through their elected senators.”

He is right to say that on balance it is better to hold confirmation hearings for judicial nominees than not to. Even in their current form, they build confidence in the nominee, in the process, and in our system of government. Getting rid of them altogether would be detrimental to nominees, to the process, and to the judicial branch. That being said, it should be readily apparent to anyone who paid attention to Amy Coney Barrett’s appearances before the Senate Judiciary Committee this week that there are serious structural issues with how hearings are conducted. Certain reforms could improve the process such that senators could better interrogate nominees, nominees could better establish themselves as qualified to sit on the Court, and the American people could better understand the role of our Article III institutions.

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On Tuesday, Judiciary Committee members had their first opportunity to question Barrett. Some senators, however, mostly or entirely declined to use their time to ask her about her judicial philosophy. Sheldon Whitehouse, the Democrat from Rhode Island did not ask Barrett a single question in his allotted half-hour, instead opting to monologue and point to what Senator Ben Sasse called, perhaps generously, “Beautiful Mind conspiracy-theory charts.” Other senators of both parties did not speak for the entirety of their 30 minutes, but nevertheless only occasionally acknowledged Barrett’s presence. Hearings are not just “increasingly” used to “grandstand,” as White acknowledges; they are almost exclusively used to do so, much of the time over issues entirely unrelated to the work of the Supreme Court, such as the merits of the Affordable Care Act (ACA). Hearings should be about learning about a nominee, not producing campaign clips. Senators who have the privilege of participating in them should not be permitted to treat nominees like props.

To remedy this sad state of affairs, Senate rules should be amended in two ways.

First, there should be a limited amount of time during which a senator can speak without asking a question of the witness. Members of the committee are already afforded ample time to speechify during their opening statements. The point of any extended time a committee member spends speaking outside of those statements should be to provide context for a question they are going to ask the nominee. So limiting the amount of time during which they may speak uninterrupted by their own questions — be it a limit of two, or three, or even five minutes — seems fair.

Second, a stricter germaneness requirement should be implemented. As amusing as it was to watch Senator Cruz pull out a chart detailing Senator Whitehouse’s own dark-money trail or Senator Hawley describe Hunter Biden’s misadventures, these tangents were entirely unconnected to what was supposed to be being discussed. The same goes for Democrats’ use of pictures of and stories about their constituents. These unrelated questions and presentations not only are a waste of everyone’s time, but misinform the American people about how our system is supposed to work. Though it is not the job of the Supreme Court to weigh in on the behavior of a vice president’s son or to decide how our health-care system functions, the typical American tuning in to Barrett’s hearings might have been led to believe that it is. The committee chairman should reserve the right to rule such topics out of order.

More central to fixing the confirmation process is reforming the Ginsburg Rule, the idea that a nominee should provide “no hints, no previews, no forecasts” as to how they would rule on legal issues likely to come before the Supreme Court. The reason for the rule is that otherwise, litigants could be encouraged or discouraged from bringing forward a case, or feel that a nominee-turned-justice did not give their case a fair hearing. That’s an entirely valid concern, but the rule should nevertheless be rolled back. As it stands, nominees such as Barrett are able only to speak in generalities about our judicial system, their own judicial philosophies, and the opinions that they themselves have authored or joined in.

This makes for an unenlightening process and has several deleterious downstream effects. It makes it more difficult for committee members to discern a candidate’s fitness for the Court — not because senators should be using particular cases as litmus tests, but because it hampers nominees’ ability to walk us through their reasoning process in a concrete way. Moreover, because nominees are constricted in what they are able to say, Committee members not only end up straying away from the business of the day, but using nominees’ non-answers as demagogic ammunition, as Connecticut senator Richard Blumenthal did on Tuesday and Wednesday. A limited rollback of the Ginsburg Rule that allows nominees — including sitting federal judges who are presently confined by the Code of Conduct for United States Judges — to answer questions about cases that have already been decided would make hearings more focused and illuminating. Hypothetical fact patterns that could come before the Court in the future should continue to be off-limits. But continuing to pretend that people at the very top of the legal profession have no opinion about the legal reasoning of Roe v. Wade, District of Columbia v. Heller, and other landmark cases undermines, does nothing to protect the integrity of the judicial branch.

Judiciary Committee reforms would go a long way toward improving judicial-confirmation hearings. But without amending the Ginsburg Rule, it will continue to be difficult to keep committee members on task, to ascertain the philosophy and fitness of a nominee, and to properly focus the American people on the Constitution and our Article III institutions.

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