Monday, March 28, 2022

How to Fix our Broken Confirmation Process

 By Eric Segall

If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation.

But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to the idea that judges "interpret don't make the law." And of course there were far more speeches by Senators on both sides of the aisle than questions. As always, it was one big charade.

The most serious problem with all of the confirmation hearings since Judge Bork's is that they lack any substance. If you do not believe me, here is Justice Kagan writing in 1995 in the University of Chicago Law Review:

The Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct. Like other kinds of legislative fact-finding, this inquiry serves both to educate members of the Senate and public and to enhance their ability to make reasoned choices. Open exploration of the nominee's substantive views, that is, enables senators and their constitutuents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters.

Of course, Justice Kagan largely ignored this critique during her own confirmation hearing and walked back the most important points she made in her discussion of the process in her scholarship.

But she was 100% right. There is no reason Supreme Court nominees can't be more forthcoming about their views. Of course, no nominee should make any promises or commitments and, if they are a sitting judge, they should not comment specifically on particular cases that are or might be brought before them. But that does not mean they should not express their opinions on the major constitutional questions of the day in a general manner. As I once wrote, a nominee could easily say the following (which is undeniably true):

Because of the vagueness of many of the important provisions of our Constitution, because history is often unclear, and because the Supreme Court has a practice of overturning important constitutional decisions, the “law” often runs out in difficult constitutional cases. At that point, a Justice has no choice but to bring her personal values, experiences, and judgments to the process. The law, alone, is simply not enough to decide these cases. Let me be clear, however, that the fact that personal judgment matters is not the same thing as saying that I will legislate from the bench or that law doesn't matter at all. I will try to apply the law the best way that I can. But in constitutional cases, the law often leaves the Justices with significant discretion.

And as for specific issues like, say abortion, a nominee could say the following:

After much thought and reflection, I believe that the Fourteenth Amendment protects, to a certain degree, a woman’s right to terminate her pregnancy. I might even say that at this moment I think the Casey decision struck the right balance between the woman’s right and society’s interest in the life of the fetus and health of the mother. There is no difference between setting forth that view in a law review article I might have written last week or last year and saying it to you here today. When presented with a real case about abortion and when obligated to make a decision as a judge, I might, of course, come out differently, but there would be nothing improper about me disclosing to you today the truth about how I view this difficult issue at this moment in time. Briefing and a real case could, of course, make me feel differently.

Now the common objection to all this is that a nominee telling he truth like this would never get confirmed. I disagree. I think the American people understand the great discretion that the Justices possess and that they all have their personal biases, values, and politics that inevitably seep into their decisions. I think the American people would actually applaud such honesty and candor and find it refreshing. And it might, just might, help us dispel some of the most important myths surrounding how our highest Court actually works. How can that be a bad thing? 

The confirmation process for a life-tenured seat on our highest Court should be run by adults for adults. For a long time, however, Senators have acted like moody adolescents during these hearings. It is far past time for them to start acting like adults. And the place to start is for them to ask real questions and demand real answers. It can be done. 

And, I won't hold my breath.