Adam J. White is a resident scholar at the American Enterprise Institute.
There’s a point — more than one.
Yes, Senate confirmation hearings aren’t constitutionally required. They’re simply a matter of Senate rules, and fairly recent ones at that. The first Supreme Court nominee to receive a confirmation hearing was Louis Brandeis, in 1916. As confirmation hearings in the past few decades have become uglier— and as senators increasingly use them to grandstand — many Americans may wonder about their utility.
Yet despite all this, proper Senate confirmation hearings for Supreme Court nominees are indispensable. It would be a mistake for Republicans to rush this part of the Senate’s work. However inconsequential it might seem for this nomination, the tradition of holding such hearings before confirmation has come to serve several crucial constitutional purposes.
First and foremost, the process deters palpably unqualified nominations. Presidents know they cannot nominate a judge who cannot convey a basic understanding of the law in response to senators’ questions. That is, in turn, a test run for the work of the court itself, which is not merely deciding cases but justifying those decisions with written opinions. The court’s legitimacy rests on the public’s confidence in the quality of judicial analysis and judicial temperament. The Senate hearing is the first opportunity for a new justice to inspire that confidence.
Second, confirmation hearings are an opportunity to focus Americans’ minds on the importance of the Constitution, and to debate both the meaning of its words and the role of judges in applying that meaning. In a time of profound disagreement over the Constitution itself, the Senate’s hearing is a moment when the public, the press and the political process centers on the Constitution itself — even during a presidential campaign in a pandemic. Over the past three decades, for example, the rise of constitutional originalism in courts of both law and public opinion was aided by its discussion in Senate confirmation hearings. Conservative originalists, and their opponents, should continue to use confirmation hearings as an opportunity for civic education.
Finally, confirmation hearings are an opportunity for the people to make their own voices heard, through their elected senators. To the extent that justices believe that the court’s job is not just to protect the Constitution’s written rights but also to create new rights, the Senate’s hearings are a time to remind them, as Justice Antonin Scalia once warned, of “the twin facts that the American people love democracy and the American people are not fools.” The court too often confuses value judgments for constitutional rights, and if those value judgments can no longer be voted on, Scalia said, then “at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”
There are limits on the degree to which these questions can meaningfully be probed in today’s confirmation hearings. Nominees are loath to pre-judge matters likely to come before the court, following a precedent set by Ruth Bader Ginsburg during her 1993 confirmation hearing. “A judge sworn to decide impartially can offer no forecasts, no hints,” Ginsburg, who died last month, told the Senate Judiciary Committee, “for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” Practically speaking, the “Ginsburg rule” means Barrett is unlikely to reveal much about any of the specific disputes likely to come before her as a Supreme Court justice.
Still, general questions are valuable. In the Rose Garden ceremony for her nomination, Barrett invoked the late Scalia, for whom she clerked: “His judicial philosophy is mine, too.” Senators should ask what that means. How does it influence the way she ascertains a written law’s original meaning, in practice? How should a judge apply the Constitution’s majestic generalities, the Fifth and 14th amendments’ “liberty,” in concrete cases? And given Barrett’s years of study and scholarship on the relationship between written law and judicial precedent, how does she think a judge should incorporate precedent into constitutional originalism?
The Constitution uses a political process to produce a nonpolitical court. This is a profound challenge, and to meet it requires a considered process before the final vote to confirm a new justice with life tenure. When the court’s integrity seems constantly under attack, senators should take this opportunity to reinforce its legitimacy, not corrode it.
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Amy Coney Barrett, Trump’s Supreme Court nominee
President Trump has nominated federal appellate judge Amy Coney Barrett to the Supreme Court. Barrett testified before the Senate Judiciary Committee this week. The committee has formally set a panel to vote on her nomination for Oct. 22.
Who is Amy Coney Barrett? A disciple of Justice Antonin Scalia is poised to push the Supreme Court further right
What happens next: Here’s how the confirmation process for Barrett will unfold
Whip count: Where GOP senators stand on quickly filling Ginsburg’s Supreme Court seat