Four Supreme Court nominees went before the Senate Judiciary Committee over the last four years. From an actuarial perspective, there probably won’t be another confirmation hearing for a Supreme Court nominee for another decade. When the next vacancy arises, I hope the Senate skips holding another confirmation hearing altogether. After covering the last four, I’m convinced that they are a waste of time—for the senators, the nominees, and the American people—and a blight on the American judiciary.
Thanks to three decades of precedents, Supreme Court confirmation hearings now exist mainly for the president’s party to praise and defend a nominee while the other party criticizes and denounces them. The list of senators who might vote for a nominee put forward by the other party is now down to three or four self-styled moderates. And even if senators went in with an open mind, the nominees now give only the blandest possible answers to most questions asked of them—for reasons of judicial ethics, but also to avoid saying something that could blow it all up.
Judge Ketanji Brown Jackson is the latest and hopefully last nominee to go through this theatrical exercise. The GOP homed in on Jackson’s sentencing record for child-porn-related crimes, which made up only a handful of cases during her tenure as a federal trial judge. Jackson sentenced all of the defendants she encountered on the lower end of the current federal sentencing guidelines. Republican senators, tapping into the QAnon sentiment that animates part of their base, tried to cast Jackson as some sort of friend or sympathizer to sexual predators. “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” Missouri Senator Josh Hawley claimed.
What Hawley and others omitted was the context. Jackson wasn’t an outlier: Most other federal judges also sentence defendants who are charged with these specific offenses below the guidelines. So why would the judiciary go so easy on such a heinous crime? Because those guidelines—as well as the federal law that shapes them—were drafted in a pre-internet age when child pornography had to be distributed and collected by mail, and sentencing enhancements were applied based on volume. As Jackson herself noted, this now results in cases where 15 minutes of browsing can result in criminal sentences that, under the guidelines, would be 40 or 50 years long.
There are many Americans who might be happy seeing these defendants locked away for that long. The problem, as noted earlier this month by National Review’s Andrew McCarthy, is that they can end up facing far longer sentences than their particular crimes would warrant, especially compared to those who actually produce and traffic in these images. Congress, for obvious reasons, has no incentive whatsoever to remove the five-year mandatory minimum for this offense, so federal judges have to find other ways to make it workable in practice.
But none of this context actually matters to the Republican senators who grilled Jackson about it. Her nomination was so low-stakes for the court’s ideological balance that I suspect the smear wasn’t really about stopping her nomination at all. (Not that conservatives wouldn’t have been thrilled if it worked, of course.) Instead, it seemed like revenge of sorts for Justice Brett Kavanaugh’s confirmation process and the perceived injustices wrought upon him by Democratic senators and their allies. Republican senators repeatedly brought up the Kavanaugh saga during Jackson’s own confirmation hearing to deflect Democratic criticism of their own questions. Mike Davis, the conservative legal activist who helped orchestrate the smear against Jackson, readily told Vox that Republicans wanted to turn the Jackson nomination into a “political wash” for Democrats instead of a “political win.”
His strategy doesn’t appear to have worked. According to a post-hearings Quinnipiac University poll, 51 percent of Americans want Jackson confirmed to the Supreme Court and a similar percentage opposed the way that Republicans handled the hearings. The strategy did not shake loose any Democratic votes, with West Virginia’s Joe Manchin denouncing these smears in vivid terms. Nor did it prevent Susan Collins, a Republican senator from Maine, from announcing that she would vote for Jackson’s confirmation. If anything, the cynical smears only seemed to harden Americans’ hostility toward the ordeal itself: A hefty 72 percent of them told Quinnipiac that the confirmation process for Supreme Court justices is now “too political.”
Maybe the Founders got this part right. In the early republic, there were no confirmation hearings for Supreme Court justices. When George Washington nominated William Cushing to be the second chief justice in 1796, in fact, the Senate confirmed him the next day. (He declined the job a week later on health grounds.) The first confirmation hearing of sorts wasn’t held until 1916, for Louis Brandeis, who was nominated to the court by Woodrow Wilson. Brandeis had developed a national reputation for his legal victories against business interests and wrote a seminal Harvard Law Review article articulating the idea of a right to privacy.
His record as “the people’s lawyer” made him controversial among some of the Senate’s more conservative members. Brandeis was also the first Jewish nominee for the high court, which drew no shortage of veiled antisemitism. While he did not personally attend the Senate Judiciary Committee hearings where his nomination was discussed, they set a precedent that senators would continue to follow. Felix Frankfurter, who was also Jewish, became the first nominee to attend his own hearing in 1939.
It wasn’t until 1987 that things began to get intense. Robert Bork came under fierce criticism by Democrats and liberals after Ronald Reagan announced his nomination. They focused on his stated views on civil rights, executive power, and, ironically enough, whether there was a constitutional right to privacy. (Bork thought there wasn’t.) After the Senate rejected his nomination in a 42–58 vote, conservatives cast him as a victim of Democratic smears and cited his perceived ill treatment in judicial confirmation battles thereafter. Bork’s outspokenness also led the George H.W. Bush administration to seek a conservative nominee who wouldn’t be burdened with a similar paper trail to replace William Brennan in 1990, which backfired when their nominee, David Souter, joined the court’s liberal wing.
Since Bork’s defeat, the Senate has confirmed every would-be justice who actually appeared before the Senate Judiciary Committee. The only three failed post-Bork nominees never actually made it that far. Douglas Ginsburg, who was tapped for the job after Bork, withdrew from consideration after NPR reported that he had previously smoked marijuana. Harriet Miers, George W. Bush’s initial choice to replace Sandra Day O’Connor in 2005, withdrew her nomination after the White House received intense criticism from conservative legal activists for not nominating someone more committed to their movement. And Merrick Garland’s nomination failed to advance because the Republican-led Senate didn’t want then-President Barack Obama to name Antonin Scalia’s successor. In other words, if you make it to the hearing at all these days, you’re pretty much in. Presidents, senators, and the nominees themselves apparently won’t submit to the grueling experience otherwise.
A few years after Bork’s nomination was voted down, another development brought confirmation hearings to the brink of pointlessness. Ruth Bader Ginsburg famously told the Senate Judiciary Committee in her opening statement in 1993 that she would provide no “previews,” no “forecasts,” and no “hints” on how she would decide specific cases or issues as a Supreme Court justice. This wasn’t a new principle, since previous nominees had declined to answer some questions on similar grounds. Nor did Ginsburg herself entirely follow it during her own confirmation process for the Supreme Court when it came to abortion rights.
But her sweeping articulation of the “rule,” as well as her status as a liberal icon, gave future Supreme Court nominees a justification to decline to answer almost any question that they wanted to avoid. Republican-nominated justices were particularly enthusiastic to cite the “rule” to Democratic senators who wanted to pry open their views on abortion and LGBT rights. Kavanaugh, for instance, took to telling Democratic senators over and over again that he “understood” Roe v. Wade as a precedent of the Supreme Court, carefully avoiding an answer on whether he’d uphold it. We’ll find out the real answer later this term when the court decides Dobbs v. Jackson Women’s Health Center.
More recently, senators from both parties have tried to use the nominees’ nonanswers against them. When California Senator Dianne Feinstein asked then-Judge Amy Coney Barrett if presidents could unilaterally delay a presidential election, the nominee declined to give a straight answer. “If I give off the cuff answers, I would basically be a legal pundit, and I don’t think we want judges to be legal pundits,” Barrett told Feinstein. “I think we want judges to approach cases with an open mind.” Last week, Jackson similarly declined to answer when Tennessee Senator Marsha Blackburn asked her to define what a “woman” is, apparently recognizing that it was related to the wave of anti-transgender bills in state legislatures right now and the legal challenges to them that will inevitably follow.
Other recent trends have made it more likely that confirmation hearings will be similarly pointless. After the Merrick Garland saga in 2016, it seems almost certain that the Senate will no longer consider or confirm Supreme Court nominations made by presidents from opposing parties. If the Senate will only hold hearings for Supreme Court nominees who are already virtually certain to be confirmed, and if the nominees can’t or won’t say anything that could harm their prospects in those hearings, then the hearings don’t serve any actual purpose other than inflicting political damage.
It might be tempting to think that the problem isn’t the hearings themselves but rather the people running them. There’s an element of truth to that. Consider how Nebraska Senator Ben Sasse questioned Jackson last week. Unlike most of his Republican colleagues, he did not try to smear her or lure her into verbal traps. (He even declined to sign a letter circulated by Senate Republicans asking for more evidence to support those efforts.) Sasse’s questions were entirely about Jackson’s judicial philosophy. He asked reasonable questions and gave her the space to answer them within the ethical boundaries she must follow. In the end, however, it didn’t really matter.
“Judge Jackson is an extraordinary person with an extraordinary American story,” Sasse said in a statement last week. “We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation.” Jackson was receptive to originalism and textualism, perhaps more openly so than most of her Democratic-nominated predecessors. But it wasn’t enough for Sasse, who had a particular ideological vision in mind that Jackson didn’t fit. “Instead she seemed to imply, like Justice Elena Kagan, that originalism is just one of the tools judges use—not a genuine constraint on judicial power,” Sasse explained. “Judge Jackson’s record makes it clear she has more tools in her toolbox.”
Unlike his colleagues, I don’t think Sasse was acting in bad faith. The two parties now have two largely irreconcilable visions for how a Supreme Court justice should decide cases on the high court. Until recently, the party of the president who nominated a justice wasn’t a reliable proxy for the nominee’s philosophy. But after the retirements of John Paul Stevens and David Souter in 2009 and 2010, respectively, the liberal and conservative blocs of the Supreme Court became identical to the Republican-appointed and Democratic-appointed blocs. The conservative legal movement has gone to considerable lengths over the past few decades to ensure that Republican presidents only nominate justices who share their approach. Liberal interest groups play a similar role for Democratic presidents, to a lesser extent. By the time a nominee reaches the Senate Judiciary Committee, the die is already cast.
Longtime readers may remember that I’ve proposed eliminating the confirmation process altogether by filling future Supreme Court vacancies with judges chosen at random from each of the federal circuit courts of appeals. Alternatively, the Senate could just scrap confirmation hearings and let the rest of the process take place as normal. Ninety-nine percent of the nominee’s qualifications can be gleaned from the lengthy questionnaires they fill out for the committee at the first stage of the process or by reviewing their existing record. If senators have any questions or want any clarifications, they could submit them in written form. This already takes place when senators ask written “questions for clarification” after the hearings take place; senators should use it as the default method for questioning prospective justices in the future.
Why not do this for every presidential nominee who comes before the Senate, you might ask? The answer is that Supreme Court nominations are different. Executive branch nominees do not have the ethical obligation to remain neutral, so they don’t have a “Ginsburg rule” to allow them to avoid questions. For nominees to the lower federal courts, senators have generally shown much greater restraint in questioning them, partly because the stakes are much lower and partly because there is no national television audience. Supreme Court confirmation hearings, on the other hand, do almost nothing to help senators or the American people better understand a nominee. Their abolition would only be an improvement for the confirmation process, and their continued existence could only serve to further corrupt it.
