The (supreme) court of public opinion
The value and content of confirmation hearings
What’s the value of transparency in a democracy? Does it serve a function, or is it simply a right of the people to hear from elected and appointed officials, holding them to account through public opinion and in the ballot box?
These and other questions loom in the distant background when Elena Kagan’s confirmation hearing to join the Supreme Court kicks off this afternoon. While widely regarded as an empty formality that can do more to derail a confirmation (see: Robert Bork) than propel one, Supreme Court confirmation hearings are one of the few opportunities most Americans have to see and hear from the only unelected, lifetime-appointed branch of our federal government.
Many legal scholars and practitioners dislike confirmation hearings, treating them merely as superfluous opportunities for political bluster or the unending debate on abortion. But a fascinating new study – the first comprehensive analysis of what has been said at confirmation hearings – suggests otherwise:
Our findings are wide-ranging. Some simply provide empirical validation of conventional wisdom about the hearings (the hearings have, for example, gotten longer). Others challenge that wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the dialogue between the senators and the nominees. We also present findings that will help scholars tease out the complex mechanisms through which the confirmation process connects public opinion to constitutional law. For example, we find that there is substantial variation over time in the issues discussed at the hearings, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we present evidence that speaks directly to the fairness of the process itself: for example, we find that women and minority nominees face a significantly different hearing environment than do white male nominees.
In some ways, the pivotal question is not what happens at hearings, but how what happens relates to the chances for actual confirmation. But even when placing that consideration aside, it’s nonetheless important from the perspective of transparency to find out what confirmation hearings tell us about nominees.
That the topics have changed over time is significant. The study finds especially that civil rights has become an increasingly central issue:
As shown in Figure 3, civil rights has dominated the substantive issue areas covered at the hearings overall, and has done so with particular force since 1970. This figure plots the percentage of comments made regarding civil rights from 1939-2009. While there was notable variation in the pre-1970 era, with the Jackson (1941) and White (1962) hearings containing no discussion of civil rights, it is apparent that civil rights has become an essential part of the confirmation hearings. In fact, since 1971, interrogation by senators regarding a nominee’s views of the pressing civil rights issues of the day has never represented less than 20% of all questions asked at the hearings.
Even if we can’t elect Supreme Court justices, it’s useful to know that (a) their confirmation has been informed at least partially by the evolving set of concerns they will forced to address from the bench and (b) we have an opportunity to hear what they have to say on these issues, in the hopes that a truly outrageous view will impact (negatively) their hopes for confirmation.
Among the study’s disturbing findings are those with regard to gender and race:
First, it is evident that Senators engaged in less chatter for both minority and female nominees.
[…]
Second, senators pressed minority and female nominees much more heavily with regard to their judicial philosophies.
[…]
Third, female and minority nominees received fewer questions involving government operations and more questions implicating banking and finance.
While the primary value of the hearings may be that of transparency, the reality is that it is an unfair process – both in terms of the judgments the public forms about nominees and in relation to the chance of confirmation – if minority and female nominees are treated differently.
Unfortunately, the reality of an election is that very few formal procedures can effectively mute the force of prejudice, however latent or benign. Because there is no legal prohibition against nominating women or minorities, it is difficult to envision a system under which biases in questioning could be filtered out (except for some obvious examples which would be immediately condemned).
In this respect, the study confirms a truism espoused by anyone who has watched a confirmation hearing: it’s hard to get a fair shake.
-Sam
Related posts:
- The court of public opinion
- Too smart for the supreme court?
- Supreme ideology
- Guest post: Picking the next Supreme Court Justice
- Faith in the Supreme Court
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