1. Senators do a good job asking nominees the questions Americans want them to ask
One of the consequences of giving Supreme Court justices life tenure is that it largely removes them from democratic accountability once they are seated. One of the few checks on the court is that justices are selected and confirmed by elected officials — the president and the Senate.
For the confirmation hearings to serve as a democratic check, members of the Senate Judiciary Committee must ask nominees questions that matter to the American public to help determine whether the nominees fall within the constitutional mainstream.
Our research finds that senators are good surrogates for the American people in this regard. Senators are quite skilled at asking nominees about the legal and political questions that matter most to their constituents at the time of the hearing.
For example, in the 1970s, as women’s rights became a major political and legal issue, senators began asking nominees about their positions on gender equality. Hearings held over the past 15 years have focused attention on more contemporary debates, including the scope of the Second Amendment, campaign finance reform and presidential powers. And, perhaps not surprisingly, Roe v. Wade (1973) is the Supreme Court precedent senators most often ask nominees about — it has appeared at every hearing since it was decided, with the exception of those for John Paul Stevens (1975) and William H. Rehnquist (1986).
2. Nominees historically have answered questions, but that may be changing
For the hearings to serve as a democratic check, nominees must agree to answer the senators’ questions. That way, nominees can demonstrate to the public that they are committed to American ideals such as racial and gender equality, freedom of speech and the right to privacy — as well as how they interpret these concepts.
Historically, nominees have done this by answering the senators’ questions. From 1939 to 2010, nominees refused to answer only about 5 percent of the committee’s questions. For example, as a nominee in 1993, Ginsburg indicated her support for racial and gender equity, free speech and the right to privacy. She even surprised many senators by affirming Roe v. Wade, rather than avoiding questions about abortion.
In contrast, Neil M. Gorsuch was the least forthcoming nominee in almost 50 years of Judiciary Committee hearings. He not only declined to opine on currently divisive issues that might soon come before the court, as nominees commonly do, but he also refused to explain his position on core constitutional principles that most Americans support. President Trump’s most recent nominee, Brett M. Kavanaugh, followed Gorsuch’s lead and refused to take firm positions on issues most Americans consider settled.
Trump’s third nominee will probably follow suit. Nominees who refuse to answer questions about even well-settled constitutional issues avoid drawing difficult lines between things they believe are and are not divisive. But it also prevents senators and the American people from fully evaluating and debating the constitutional consequences of a lifetime appointment. The result may be partisan bitterness at this failure to inform public discussion or ensure appropriate public accountability over the Supreme Court’s direction.
3. Female nominees are treated differently
If confirmed, Barrett would be only the fifth woman to serve on the court. Our research shows that female nominees have faced different kinds of hearings than have their male counterparts, even before our current era of highly polarized and partisan politics.
First, even when male and female nominees have equivalent qualifications, senators more often question female nominees’ professional competence to serve. Those questions tend to come especially from male senators in the opposing party. This comes primarily in questions about how a nominee approaches constitutional interpretation, a Supreme Court justice’s core job. Senators repeatedly press female nominees — who are among the most well-credentialed lawyers of their generations — to prove that they have what it takes to serve on the high court.
Second, male senators interrupt female nominees more often than they interrupt male nominees. This is, again, especially true for opposite-party senators. Interrupting a nominee is a subtle but powerful form of conversational dominance that can make a nominee seem unprepared for the court. Further, interrupting a nominee is a form of social control that perpetrates gender inequality in a highly noticeable context and may, in turn, reduce public confidence in the nominee.
Based on our scholarship on Supreme Court confirmation hearings, we therefore anticipate that Barrett will be asked about the most important legal and political debates in the United States today, but will largely escape actually answering those questions. She is also likely to have to prove her competence more than either Gorsuch or Kavanaugh needed to, and she will be interrupted frequently. In the intensely partisan environment that we find ourselves in, these tendencies will probably create even more turmoil than usual.
Paul M. Collins Jr. is a professor of legal studies and political science at the University of Massachusetts at Amherst.
Lori A. Ringhand is J. Alton Hosch Professor of Law at the University of Georgia School of Law.