Questioning Judges about Their Decisions: Supreme Court Nominees before the Senate Judiciary Committee

Article excerpt

Interest in questioning nominees about past decisions has increased over time with senatorial recognition of the courts' importance.

There is considerable conflict involving the federal courts and the other branches of government, conflict that is widely perceived to have grown in recent years.1 Some of it involves attacks on the courts themselves. Presidents and members of Congress have criticized judges and threatened retaliation, even impeachment, for their decisions.2 In 2005 one senator even said that recent incidents of violence against judges might have resulted from inappropriate judicial activism.3 In response, some federal judges and others sympathetic to them have expressed concern about what they see as serious encroachments on judicial independence.4 Justice Sandra Day O'Connor said in 2005 that "I don't think I've ever seen relations as strained as they are now between the judiciary and some members of Congress."5

Other conflicts concern the selection of judges. As illustrated by the reactions to the nominations of John Roberts, Harriet Miers, and Samuel Alito, the process of selecting Supreme Court justices has come to feature greater controversy and more heated battles.6 Contention has spread to the selection of lower-court judges, bringing a new level of visibility to that process.7 That diffusion of contention is reflected in the conflicts over use of the filibuster by Senate Democrats to block the confirmation of some nominees to the courts of appeals.

Another development involving the courts in the current era is the growing practice of promoting judges to the federal appellate courts from lower courts. Most notably, it has become standard practice to select Supreme Court justices from judges sitting on lower courts, primarily the federal courts of appeals." In fact, the attention given to Harriet Miers's lack of judicial experience suggests that this practice has won wide support from participants in American politics.

At first glance, this development seems unrelated to the apparent growth in conflict over the federal courts. But in their origins, changes in the professional backgrounds of Supreme Court nominees are similar to the growth in conflict. Both stem largely from increased recognition of the impact of federal court decisions on government and society and an interest in shaping those decisions. Seeking to minimize unpleasant surprises from their nominees, presidents have sought out nominees whose judicial records provide a basis for predicting their overall stance on the Supreme Court.9

There is a second link between these two developments, a link that is consequential. Just as a judicial record assists the president in scrutinizing prospective nominees, that record helps senators and other interested parties to assess actual nominees and creates a basis for supporting or opposing them. At a time of growing criticism of judicial decisions and growing scrutiny of judicial nominees, then, the practice of nominating lower-court judges to the Supreme Court provides another mechanism of accountability for judicial decisions.

This mechanism merits attention. For federal judges as a group, promotion to a higher court is very desirable, and that certainly is true of appointment to the Supreme Court. No court of appeals judge will be nominated to the Supreme Court without a favorable evaluation of the judge's record of votes and opinions by officials in the White House and Justice Department. Although the great majority of nominees are confirmed by the Senate, the defeats of some and the narrow margins of victory for others cause the Senate to loom large in the thinking of all nominees and the presidents who appoint them. To the extent that senators probe and respond to nominees' judicial records, their evaluations of those records-like the evaluations made by the president's administration-will help determine which judges win elevation to the Supreme Court. …