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Debate Club
DEBATE CLUB 10/24/05

CLEANING UP THE CONFIRMATION MESS?

Richard Davis and Michael Comiskey debate.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

Last week the media reported that in fear of a confirmation process that has become "so vitriolic and so bitter" some potential Supreme Court nominees removed themselves from consideration.

While critics have suggested that it's time to revamp the process, others argue that, despite the speculation, the publicity, and the rancor that now mark this ritual, confirmation hearings about candidates for the high court are doing their job. Does the process need to be fixed?


Richard Davis is Professor of Political Science at Brigham Young University and author of Electing Justice. Michael Comiskey is Associate Professor of Political Science at Penn State University, Fayette and author of Seeking Justices.

Davis: 10/24/05, 12:23 PM
As Harriet Miers and the Senate Judiciary Committee gear up for their meeting on November 7, it is clear this is not your grandfather's Supreme Court nomination process. Interest groups are orchestrating media campaigns for or against her. E-mail lists and blogs are overflowing with commentary. Journalists are scrounging for background information. Public opinion polls are taking the public's pulse on how they view her, what questions she should answer, and whether she should be confirmed.

No, this is not an electoral campaign; it is the Supreme Court nomination process. And it is a far cry from what the U.S. Constitution outlines for this procedure.

While the constitutionally-mandated process lists only the president and the Senate as participants, today's Supreme Court nominations are shaped as well by group-led media campaigns, saturation media coverage, and public opinion polls. Supreme Court nominations clearly are like elections—complete with all the trappings of a political campaign.

Interest groups are major players in this "election." One conservative group, Progress for America, says it has $18 million to spend in favor of the Miers confirmation. Opponents—both liberal and conservative—are raising money and gathering support to derail her nomination.

The media—commercials, news, and the talk shows—have become the battlegrounds for the clash of supportive groups, bolstered by the White House, and groups opposing the nominee. In addition to the targeted television ads aimed at wavering senators, the news media is being inundated with press conferences, news advisories, and op-eds. Newspaper editorials already are opining about Miers, never questioning whether their opinions should matter in such processes.

The media blitz by groups, as well as the press' own coverage and editorials, will be targeted indirectly at senators and directly at still another player—public opinion. A flurry of public opinion polls are asking the public whether they think Miers, like Roberts before her, should win confirmation. And growing numbers of Americans are weighing in. In 1993, 67 percent of the public said they held an opinion on whether Ruth Bader Ginsburg should be confirmed. This month, 80 percent of Americans registered an opinion on whether Miers should win confirmation. Senators will receive bundles of paper mail and gigabytes of e-mail (many of which will be form letters) urging them to support or oppose a nominee. And senators up for re-election in 2006, particularly in swing states, will be paying attention. Senator Alan Dixon, the Illinois Democrat who voted for Clarence Thomas and then lost his re-nomination bid the next spring, is the model for ignoring constituency opinion.

Clearly, the process has strayed from its constitutional underpinnings. Does that matter? If so what should be done?

Some might argue we should depoliticize the process. While we're doing that, we can also return presidential selection power to the Electoral College and the election of senators to the state legislatures. That's just not possible. Any institution that impacts social, economic, and foreign policy isn't suddenly going to be ignored by other players affected by that policy. Nor is the court likely to throw away the power it now holds to affect public policy.

Instead, we should change elements of the process that demean judicial nominees and the court itself. Although other parts of the process call for reform, one major problem is the Senate confirmation hearings. These sessions have become an exercise in avoidance. Senators ask questions they know nominees won't answer (and, indeed, don't really expect them to answer). Many of those same questions have emanated from interest groups with whom the senator wants to keep good relations. Not surprisingly, nominees don't answer the questions, but instead give boilerplate replies designed to reveal nothing. John Roberts won confirmation after artfully avoiding the committee's questions. Harriet Miers and subsequent nominees can't help but follow the successful model.

The problem is that this whole process maintains the veneer of a meeting between the senators and the nominee while actually serving as the major media event of the process. Neither Harriet Miers nor the senators will have as their main purpose to talk to each other. They all know the audience watching via television or hearing about it through news media is the target of what they are doing. The public is the major player in this process and yet we maintain the illusion through a formal process of presidential selection and Senate confirmation that this is still a matter between elites. How should they be reformed?

(1) Pool the questioning. Too many senators use the forum as an opportunity to give stump speeches or "educate" the nominee on the senator's views.

(2) Avoid questions that have a "have you ever" quality? They seem more like an inquisition rather than an effort to communicate with the nominee.

(3) Use follow-up questions. Senators are perceived to be outside the intellectual league of Supreme Court nominees and therefore incapable of engaging in an extended conversation on principles of consitutional law. For some that is probably true. That returns me to the first point. Allowing a few senators with greater expertise—on both sides of the aisle—to dominate the hearings would turn them into the kind of debate the Senate should have and Americans deserve to participate in.

(4) Ask questions about personal views, but in that line of questioning emphasize the fact that revealing personal views is not the same as suggesting that such views are determinative in judicial decision-making. The ideal justice is one who does not lie about their personal views (i.e. "I have never discussed Roe v. Wade), but who does not rely on those personal views to organize their approach to the job of judging. Look for a nominee who admits they hold personal views but is more wedded to the law and precedent than furthering an agenda. Initially, nominees will be reticent to discuss personal views (such as John Roberts), but perhaps over time they will be free to admit they have views but those views are only one part of their approach to judging.

(5) Punish the nominee for deceptiveness. The Senate cannot assert its constitutional role if those who avoid answering are routinely confirmed anyway. The Senate appears like a paper tiger engaging in a charade that makes the individual senators look tough but weakens the Senate's power.

Hearings should not disintegrate into meaningless encounters. The Senate Judiciary Committee members must perform their investigative task with greater seriousness in order to serve the American public who deserve a more genuine process of scrutinizing Supreme Court nominees.

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Comiskey: 10/25/05, 08:05 AM
Well, Richard, you've certainly indicted the confirmation process. I hardly know where to begin to respond. To me, you sound a little inconsistent by seeming to lament the role played by the public in the process and later suggesting reforms to produce the sort of debate "Americans deserve to participate in." But you're certainly right to say that we won't go back to the process of the past. Let me mention two more things we agree on.

First, I think senators may rightly "punish the nominee for deceptiveness," as you suggest. In 1991, Clarence Thomas's claim that he had never discussed his view of Roe v. Wade with anyone was completely unbelievable. Yet some senators who undoubtedly disbelieved him voted to confirm him. And in 1986, when Antonin Scalia refused to express an opinion about Marbury v. Madison (the ruling that established the Supreme Court's power to declare laws unconstitutional), every senator should have voted "no." Sandra Day O'Connor and John Roberts were two other particularly tight-lipped nominees.

And senators often fail to ask good follow-up questions, as you rightly note.

But I think we know a good deal more about nominees' views than you have let on. Political scientists Jeffrey Segal, Albert Cover, and Charles Cameron showed in a 1989 article that you can measure the liberalism or conservatism of Supreme Court nominees just by looking at newspaper descriptions of the nominees. And when you compare the resulting measure of the nominees' ideologies with the way they later vote as justices, the relationship between the descriptions and the votes is a .80 out of a possible 1.0. So we know pretty much what most nominees think before the Senate holds its hearings.

Take the most recent example: Chief Justice Roberts. You say that he "won confirmation after artfully avoiding" senators' questions. There's a lot of truth to that. But why should Senate Democrats have pressed him any harder? There was plenty of evidence that he's a conservative. But he's never given any reason to think that he is what some people would call right wing, which many people consider Justices Thomas and Scalia to be. Because Roberts was slated to replace the late Chief Justice Rehnquist, who was also a conservative (but also not in the Thomas-Scalia camp), Roberts' appointment probably won't change the court very much. And Senate Democrats can hardly expect President Bush to nominate a liberal. So why should they press the issue?

And that's not all. At past confirmation hearings, nominees have given meaningful and diverse answers to questions of judicial philosophy, even as they ducked questions about specific issues such as abortion. For example, several nominees have told us whether they view the meaning of the Constitution as fixed or evolving, whether justices should interpret the Constitution according to the original intentions of the founders, how justices should define the vague "liberty" protected by the Fifth and Fourteenth Amendments, whether the court's complicated approach to deciding equal protection cases is workable, whether justices can use legislative history when they interpret laws passed by Congress, and how to interpret the Ninth Amendment (which suggests that we have rights not listed in the Constitution).

Given that the issues that come before the court are certain to change, this sort of knowledge about the nominee's approach to legal interpretation may be more useful than knowledge about a nominee's views on today's issues.

So, while they aren't perfect, I think the hearings are better than you do. But I suspect you're not convinced.

Davis: 10/25/05, 04:32 PM
You are right that senators still vote for nominees they don't believe are telling them the truth. There are other factors that affect their decision-making, including the fact that they understand that the process is a charade they must walk through, but potentially use for their own purposes. Even if a nominee lies to them, at least they have accomplished other goals such as basking in the limelight in front of their constituents and their colleagues or gaining the favor of interest groups who fed the questions and watched closely for toughness on the nominee.

It is true that we know more about nominees, but how much of what we know is terribly useful in assessing competence on the court. We know that Clarence Thomas watched pornographic videos, David Souter doesn't seem to have much interest in women, and Harriet Miers is an evangelical Christian. The press, sometimes in league with groups, offers personal information usually designed to undermine a nominee. (Although in the current process supportive groups are doing the same to support Harriet Miers' nomination by sending signals about her religion or private views on abortion.)

What is less known, primarily because it is too controversial for nominees to possess today, is the record of attention to public issues and dilemmas of our day in a public service capacity. We have moved to a point where a short term in public service is a desirable quality to endure a confirmation process. For example, compare the judicial service of half of the past six nominees to the court—Thomas, Roberts, and Miers. Their combined service as a judge is four years. By contrast, each one of the previous six nominees had more judicial experience than these four combined.

It is true that we know what they tell us in the context of a confirmation hearing, where there is a strong temptation to effect a "confirmation conversion." But rhetoric is the least useful gauge of what a nominee is really like.

The bottom line is we really do know less about what we need to know about these individuals, i.e. what has been their contribution in public service and, based on that experience, how would they act as a member of the highest court in the land.

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Comiskey: 10/26/05, 09:19 AM
Gosh, Richard, I think you paint an awfully bleak and cynical picture of the Senate confirmation process, and with much too broad a brush.

It's true that some confirmation hearings are more important than others. Generally, the more we know about a nominee before the hearings, the less important they are. But the less we know about a nominee, the more important they are.

Consider the confirmation hearings for David Souter, the first of the modern so-called "stealth nominees." Nominated by the first President Bush, Souter was from a small state, New Hampshire, and no one seemed to know what he thought about the issues. And there were questions about his experience. (He'd served on his state's Supreme Court, which hears few important federal statutory or constitutional issues). Bush's chief of staff, former Governor John Sununu of New Hampshire, was telling conservatives that Bush had hit a conservative "home run" by nominating Souter.

But in his confirmation hearings, Souter came across as very smart and moderate. And that's the kind of justice he's been. He's a liberal only by the standards of today's Supreme Court, which is much more conservative than the court of a few decades ago. Nor is he a conservative. And in a survey I did a few years ago, scholars ranked Souter as nearly tied with Justice Scalia as the ablest current justice. So his hearings were not a charade.

Likewise, many senators are uncommitted on the nomination of Harriet Miers, another relatively inexperienced nominee. Her testimony, and the ranking she receives from the American Bar Association's Standing Committee on the Federal Judiciary, will count for a lot.

And I just can't agree with you that "a short term in public service is a desirable quality to endure a confirmation process." The Miers nomination has been very rocky, partly because her time in public service has been so short. She's never been a judge. And aside from an inconsequential two years on the Dallas city council, she has done legal work in the public sector only in the last year. The result? She's under attack from both left and right.

Contrast that record with the previous three nominees: John Roberts, Stephen Breyer, and Ruth Bader Ginsburg. Roberts had spent thirteen of his twenty-six years since graduating from law school in the public sector (although he'd been a judge for only two of those years). Breyer had spend fourteen years as a federal appeals court judge, two years as a counsel to the Senate Judiciary Committee, two years in the Justice Department, a brief stint as a Watergate prosecutor, and he had helped write the federal sentencing guidelines. Ginsburg spent thirteen years as a federal appeals court judge after serving seven years as general counsel to the American Civil Liberties Union.

All three of these nominees had little trouble winning confirmation.

But two of the three nominees you name who'd had little or no judicial or public experience—Thomas and Miers—had a very hard time.

The lesson here? A wise president will pick an experienced, well qualified nominee who shows no signs of becoming a zealous, ideological judicial activist. That person will sail through the process. And that's how it should be.

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Davis: 10/27/05, 09:04 AM
Mike, it is true that I am disenchanted with the judicial selection process, including presidential selection. You allude to that presidential selection phase at the end of your post. Let's deal with how that stage has changed.

Presidents have always considered politics in their decision-making. George Washington, for example, wanted a regional balance on the court. Recently, that selection process has been affected by the groups who seek to shape presidential appointments. Women's groups were significant both in 1993 in the appointment of Ruth Bader Ginsburg and this year in clamoring for a female replacement for O'Connor. In addition, the Bush administration has spent the past four and a half years consulting with conservative groups to appease them in the selection of a Supreme Court nominee. That's why the White House went out of its way to signal to these groups that Harriet Miers was really (wink, wink, nod, nod) in their camp. And that's why this nomination may go down—George Bush has not satisfied these critical players.

Because politics—specifically the president's relationships with these interest groups—plays such a critical role in the selection stage, I disagree with your statement that if the president chooses "an experienced, well qualified nominee who shows no signs of becoming a zealous, ideological judicial activist" that individual "will sail through the process."

I believe there are political reasons to explain why the three nominees you mention were successful. In the case of Souter, liberal groups had just succeeded in defeating Robert Bork three years earlier and faced criticism for initiating a politicized process. Then, Souter comes along and possesses only a scant legal record to attack. Even if they felt they should attempt to derail the nomination in the face of that criticism, it was difficult for those groups to get a handle on him in order to do so.

Ginsburg and Breyer were different cases. Clearly they were not stealth candidates. They had long records as federal appellate judges and Ginsburg had been a well-known legal advocate for years before that.

But the political difference is Bill Clinton was appointing justices who matched his ideological direction—leaning to the center of the American political spectrum. That move meant he could count on the support not only of Democrats (who were in the majority then), but also many moderate Republicans who preferred a centrist Democratic judge to a more liberal one.

By contrast, George W. Bush (much like his father) wants to veer to the right and appoint justices who match that direction. That means he loses most, if not all Democrats from the start and potentially moderate Republicans. Hence the need for stealth nominees who conceal the fact that they are part of the president's ideological shift.

That's why some nominees have been stealth and others have not. So, unless Republicans gain a clearer majority in the Senate (and those who are elected are more uniformly conservative), Republican presidents will take the stealth route. Democratic presidents may do the same if they pursue a leftist orientation and attempt to appoint a justice of similar inclinations. Stealth nominees are our future. Some, like Souter, may turn out to be stellar judges. But should we favor a process based primarily on risk?

Comiskey: 10/27/05, 04:11 PM
You've just done a good job of describing why some recent nominees have been stealth nominees and others haven't. And it's certainly possible to imagine circumstances in the future in which the stealth strategy will work. But the withdrawal of the Miers nomination demonstrates that the stealth strategy can fail miserably. Both the political left and the right may oppose such a nominee. Even the president's own party may rebel against a stealth nominee and defeat their own president, as the right wing of the Republican party did to President Bush in the Miers case.

And over the long run, I doubt that most presidents will want to veer to an ideological extreme, as George W. Bush seems to. If he succeeds in building a court that overturns Roe v. Wade, for example, he and his party will alienate the two-thirds of Americans who say they don't want Roe to be overturned. Or if his justices overturn recent decisions protecting the rights of gays, he may alienate the 80 percent of Americans who agreed with the Supreme Court's decision in 2003 holding that the private, consensual sexual conduct of adults (gay and straight) is protected by the right to privacy. Or if Bush's justices strike down environmental protection laws that conservatives dislike but most Americans support, the Republicans will lose in the long run.

In short, George Bush appears to be trying to take the country in a direction that most Americans don't want to go. Over the long run, veering hard right is a recipe for political suicide. Maybe not for Bush, who can't run for a third term, but for his party. And the same would be true for a Democratic president who wanted to make a strong left turn.

So we will almost certainly face situations in the future in which some ambiguity about a nominee's views is helpful to a president. You're right about that. But again, I think you paint with much too broad a brush when you say that "Stealth nominees are our future."

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Davis: 10/28/05, 09:07 AM
You're right that stealth candidates may not always succeed. But that doesn't mean presidents will stop using them, particularly as long as the opposition party holds enough votes in the Senate to sustain a filibuster, not to mention the times the opposition party will have the majority.

You mention that a president wouldn't want to appoint justices who make unpopular decisions. It is not easy to predict how justices will act once they are on the bench. Historically, many justices have disappointed the presidents who appointed them and, over time, the court repeatedly has taken anti-majoritarian stances. In fact, we want them to do that.

Moreover, the views of the public are not as static as you might indicate. Therefore, the sense of what is"unpopular" can and does shift over time. Sometimes Supreme Court decisions help change public opinion. The classic example is the Brown case, but one could also argue that Roe did much the same thing. So a president like George W. Bush, and his supporters, might conclude that placing today's "extremists" on the bench will contribute to a shift in public opinion that will lead to those same justices later being viewed as moderates. I'm sure they would prefer a candidate who openly supports their cause, such as a Priscilla Owen or Janice Rogers Brown. But they may reason that if a stealth candidate is necessary to accomplish that goal then so be it. I think that's why, until there is a firm majority in one direction or the other on some of these controversial issues, stealth candidates will be preferable for presidents.

Thanks for the debate, Mike.

Comiskey: 10/28/05, 07:50 PM
I think we've narrowed our differences somewhat. A certain amount of ambiguity regarding a nominee's views will often help a president. But I still think that out-and-out stealth nominees will fail most of the time. So most presidents won't take that route. Consider the circumstances that you say are most favorable for stealth nominees: when "the opposition party holds enough votes in the Senate to sustain a filibuster," and when "the opposition party will have the majority."

If the president's own party won't accept a stealth nominee, as we just saw with Harriet Miers, why would an opposition party in a strong position do so? One reason the opposition might do so is that a nominee, despite his or her stealthiness, is the best that the opposition is likely to get from a president. So they might accept the nominee. But more often, an opposition party in a strong position will force the president to compromise with them and nominate someone whose general ideology, while not ideal to them, is more or less known and acceptable to them.

Over time, people learn. After they've been "burned" once by a stealth nominee, they won't support another. We just saw that with the Republicans. They felt burned by stealth nominee David Souter. They weren't about to be burned by Miers. The Democrats have learned, too. They're wise to the stealth strategy. Had the Miers nomination come to a vote, many if not most Democrats would have voted against her. As it happened, they didn't have to do that because the conservative Republicans killed the Miers nomination for them (and nearly tore the Republican party apart in the process).

More often than not, when the opposition party is in a strong position, we'll get nominees who are known to be either liberal but not extremely so (from Democratic presidents), or conservative but not extremely so (from Republican presidents). The confirmation process will show us what they are. Hence nominees will be much more predictable than not, and they won't be all that countermajoritarian because they will be mainstream figures, not ideologues.

I will admit, though, that you've made me think harder about all these issues, Richard, and I'm not sure anyone can be certain about what the future holds.

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