An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court

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INTRODUCTION

The interpretive or judicial philosophies of Supreme Court Justices can be thought of as "packages of beliefs" about how to interpret the law, packages that go by names like formalism, originalism, and textualism. (1) Given the reasonable assumption that a judge's judicial philosophy could matter for how he or she will decide cases, the judicial philosophy of a nominee to the Supreme Court is of great interest to members of the Senate who vote on a nominee's confirmation. Figuring out a nominee's judicial philosophy is, consequently, one purpose of the confirmation hearings in the Senate, and Senators often claim to base their votes on their assessments of a nominee's judicial philosophy. During Justice Ginsburg's hearings, for example, Senator Joseph Biden, then chair of the Judiciary Committee, said the following: "A Senator has not only the right, but the duty to weigh carefully a nominee's judicial philosophy and, even more importantly, the consequences of that philosophy for the country." (2)

Many Supreme Court observers believe, however, that nominees reveal little useful information at their confirmation hearings. (3) While an occasional nominee (such as Robert Bork) will discuss his or her views in detail, most nominees are more guarded. (4) Nominees repeatedly refuse to answer specific questions, or to disclose information about how they would vote in particular cases. For example, Sandra Day O'Connor refused to state how she "might vote on a particular issue which may come up before the Court," and additionally declined to "endorse or criticize specific Suprem[e] Court decisions presenting issues which may well come before the Court again." (5) Ruth Bader Ginsburg said, "[a] judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process." (6) Antonin Scalia even resisted questions about whether Marbury v. Madison represents a settled principle of law. (7)

Obviously, what types of questions the Senators should ask--or the nominees should answer--is far from clear. Few, however, disapprove of questions about a nominee's judicial philosophy. Consider Senator Specter's comments during Kennedy's hearings:

   On the subject of judicial philosophy, our introductory statements
   today have already negated to some extent the conclusion of harmony
   in these hearings. You have already heard a fair difference of
   views. And the first question I asked of you when you and I sat
   down to talk--and I thank you for the almost 3 hours we spent
   together in two extensive sessions. The first question I asked you
   was whether you thought that judicial philosophy was an appropriate
   subject for inquiry. You said you thought that it was, and we
   proceeded to talk. And I did not ask you about your views on any
   specific cases, and I would not in private or in public. But I do
   believe that there are broad parameters which are appropriate for
   discussion. (8)

During these same hearings, Senator Leahy described this inquiry into judicial philosophy as the most important one at the hearings, saying that "[n]o issue is more central to a decision on the appointment of a Justice. (9) And while some Senators have expressed reservations about the scope of questions relating to judicial philosophy, (10) as Senator Specter's comment suggests, many others have emphasized the legitimacy of the topic. (11) In general, however, questions about interpretive methods such as the role of precedent or legislative history do not provoke explicit reactions of impropriety. (12) So while Senate confirmation hearings have numerous purposes, discovering a nominee's judicial philosophy is clearly one of them. (13) But this raises a basic question: Do the exchanges between the nominees and the Senators actually reveal anything useful about a nominee's judicial philosophy? …