Confirmation Hearings Are a Farce. And That’s Just Fine.

(Bloomberg Opinion) -- Yes, Senate confirmation hearings continue to be a farce. But they remain worthwhile, as long as we don’t have unrealistic ideas about what the process should do.

Over time, Supreme Court nominees from presidents of both parties have given fewer and fewer substantive answers to reasonable questions from senators. Republicans have been particularly aggressive in arguing that it would be inappropriate for nominees to talk about anything beyond vague cliches about umpires and the rule of law. On Wednesday, the second day of Brett Kavanaugh’s confirmation hearing in the Senate Judiciary Committee, the nominee and his Republican supporters spent plenty of time pretending he’s a total blank slate, just as Neil Gorsuch did last year and Elena Kagan and Sonia Sotomayor did before that.

I argued that Supreme Court confirmation hearings are still valuable because even when the nominee stays quiet, the questions from senators provide a pretty good education in what the Supreme Court does and why it matters, and even some of the specific doctrines that are central to current court controversies. Even if the nominee doesn't contribute much.

And it’s not really such a bad thing that these hearings are, as the New York Times put it Sept. 2, a charade.

That’s because politics isn’t a junior debate society. Very serious policy questions separate Democrats and Republicans on Supreme Court nominations, including the scope of the federal government, a host of social issues including abortion and guns, the constitutional constraints on the presidency and more. Senators often have long-held and deeply-felt views on many of these issues. Even more to the point: The groups that make up the Democratic and Republican parties are in many cases organized around these issues, often because of intense self-interest, and in other cases because of equally intense core preferences.

It’s not just policy. In this extremely partisan era, senators are naturally concerned with the party loyalties of nominees. So for a question such as whether a sitting president can be prosecuted, on which Kavanaugh flipped completely from when he was involved in investigations of Bill Clinton to when he held a position in the George W. Bush administration, Republicans recognize a friend and Democrats see an opponent. While we certainly don’t want the Supreme Court to be just a partisan body, there’s nothing wrong with justices tending to be influenced by their party’s positions. 

Given all of that, and given the strict partisan and ideological selection process employed by presidents of both parties, it’s understandable that most senators will be able to decide how they will vote within hours of learning the nominee’s name.

More broadly, we shouldn’t buy into the Hollywood idea that politics is a debate event where what really matters is the quality of the oral arguments. This myth is widespread in politics, whether it’s Supreme Court selections or presidential elections or legislation. In this narrative, senators would be open to being convinced for or against a nominee based on hearing testimony. Or, as Kavanaugh himself said Wednesday, judges should go into all cases with an open mind, whether they are Democrats or Republicans.

That, of course, is not the case. In fact, it would be highly irresponsible of those senators, most of whom campaigned on promises of either protecting or preventing the decisions Kavanaugh is likely to make if he is confirmed. Nor do appeals court justices enter all cases with open minds about constitutional doctrine, or even about how to interpret laws. It’s no coincidence that lots of important Supreme Court cases wind up with the Republican-appointed justices on one side and the Democratic-appointed ones on the other. Nor is that necessarily a bad thing. The Supreme Court is and has always been a political branch. The politics of the court aren’t identical to the politics of Congress or the presidency -- it's less overtly partisan -- but that doesn’t make the process and the outcomes any less a function of the politics of the time.

That’s also why the Democrats’ insistence that Republicans must be hiding something in the documents the White House has not produced is mostly a distraction, though I suspect it tests well in focus groups. Democrats are largely correct that Judiciary Committee Chair Chuck Grassley has moved ahead without the kind of disclosure the panel has demanded in the past. It’s always possible a more complete set of documents could produce something that would embarrass the nominee, and perhaps even threaten confirmation, but both Democratic and Republican senators already have more than enough information to conclude that Kavanaugh is likely to be a very conservative, unusually partisan, justice. And they can vote on that basis. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

©2018 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.