[Congressional Record Volume 154, Number 60 (Wednesday, April 16, 2008)]
[Senate]
[Pages S3073-S3074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   SUPREME COURT CONFIRMATION PROCESS

  Mr. KENNEDY. Madam President, an editorial in Monday's New York Times 
called attention to a new academic study on the Supreme Court 
confirmation process. The study, ``An Empirical Analysis of the 
Confirmation Hearings of the Justices of the Rehnquist Natural Court,'' 
was conducted by Professors Jason Czarnezki of the Marquette Law 
School, William Ford of the John Marshall Law School, and Lori Ringhand 
of the University of Kentucky College of Law, and it was published in 
the Spring 2007 issue of Constitutional Commentary. The study compares 
the statements made by nine Supreme Court nominees--Justices Rehnquist, 
Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and 
Breyer--at their confirmation hearings with their subsequent rulings on 
the Court to determine whether their statements as nominees on stare 
decisis, originalism, legislative history, and the rights of criminal 
defendants were consistent with their rulings as Justices.
  The authors found that a large gap often exists between what nominees 
told the Senate Judiciary Committee and how they later ruled from the 
bench. For example, in their confirmation hearings, Justices Scalia and 
Thomas indicated a stronger commitment to stare decisis than most of 
their colleagues did, yet on the Court they were the Justices most 
likely to vote to overturn precedents. On none of the subjects was the 
correlation very strong between the testimony by the nominees at the 
Senate hearings and their rulings on the Court. The authors conclude 
that Senators have a better chance at obtaining useful information in 
confirmation hearings if they ``focus their questions on specific issue 
areas rather than `big picture' issues involving interpretative 
methods.''
  As the authors state, their results are far from definitive and are 
meant only to start a conversation. The evidence is certainly 
suggestive, however, and is consistent with what legal scholars have 
been saying for many years. Supreme Court nominees reveal very little 
substantive information at their

[[Page S3074]]

confirmation hearings. As a result, it is difficult for the Senate and 
the American public to understand how these nominees will approach 
their role on the Court.
  This trend was obvious in the confirmation hearings of Chief Justice 
John Roberts and Associate Justice Samuel Alito. Throughout their 
hearings, they offered only general platitudes, with little indication 
of how they would rule on the bench. They refused to answer specific 
questions or to say how they would have voted in past cases, on the 
ground that doing so might compromise their duty to decide every case 
with an open mind.
  Legal scholars are increasingly in agreement that political 
convenience, not principle, has motivated much of this stonewalling. 
Since Supreme Court nominees all have years of legal experience and, if 
confirmed, have lifetime appointments to the Court, they can be candid 
about their views on many issues, including previously decided cases, 
without doing any damage to the judicial system or to the rights of 
future litigants.
  Since Supreme Court confirmation hearings have become increasingly 
lacking in significant content, it is no surprise that researchers find 
weak correlations between what nominees say at the hearings and what 
they do on the Court, and that academic and popular support for a more 
serious confirmation process continues to grow. Of course, no Senator 
should try to undermine judicial independence by asking nominees to 
make ``commitments'' to rule a particular way in a future case, but all 
Senators should insist that nominees participate in a serious 
conversation about the pressing legal issues of our time. Hopefully, 
Senators on both sides of the aisle can agree that, at a minimum, 
nominees should give full and forthright responses when asked about 
their views on specific legal questions. It does not compromise the 
integrity or impartiality of the judiciary to require nominees to tell 
the Senate what they honestly think about such questions. Their failure 
to do so has real costs for our democracy.
  Madam President, I believe that this article will be of interest to 
all of us in the Senate in exercising our constitutional responsibility 
of advice and consent on judicial nominees, especially nominees to the 
Supreme Court, and I ask unanimous consent that the New York Times 
editorial and the article's abstract be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 14, 2008]

                    How to Judge a Would-Be Justice

       It is hard to imagine a more solemn responsibility than 
     confirming the nomination of a Supreme Court justice. And we 
     have worried, especially in recent years, that nominees are 
     far too carefully packaged and coached on how to duck all of 
     the hard questions.
       A new study supports our fears: Supreme Court nominees 
     present themselves one way at confirmation hearings but act 
     differently on the court. That makes it difficult for 
     senators to cast informed votes or for the public to play a 
     meaningful role in the process.
       The study--with the unwieldy title ``An Empirical Analysis 
     of the Confirmation Hearings of the Justices of the Rehnquist 
     Natural Court''--published in Constitutional Commentary, 
     looked at how nine long-serving justices answered Senate 
     questions, and how they then voted on the court. While it 
     does not say that any nominee was intentionally misleading, 
     it still found a wide gap.
       Justices Antonin Scalia and Clarence Thomas, for example, 
     told the Senate that they had strong respect for Supreme 
     Court precedents. On the court they were the justices most 
     likely to vote to overturn those precedents. Justice David 
     Souter deferred more to precedent than his Senate testimony 
     suggested he would.
       The authors examined one substantive area of the law: 
     criminal defendants' rights. There what the nominees--both 
     conservatives and liberals--told the Senate about their 
     support for defendants' rights was reasonably well reflected 
     in how they voted.
       The study suggests that senators would be better off asking 
     ``very probing, specific questions,'' says Lori Ringhand, 
     associate professor of law at the University of Kentucky and 
     one of the paper's three authors.
       As we see it, the study also delivers a larger lesson: 
     Senators should examine a nominee's entire legal career and 
     look for clear evidence that he or she is committed to 
     fairness, equal justice and an unstinting view of 
     constitutional rights.
       The findings have particular resonance now because the next 
     president could nominate three or more justices, shaping the 
     law for decades to come. The Senate needs to upgrade the 
     confirmation process so it can perform its vital advice-and-
     consent role more effectively.

                 [From Social Science Research Network]

 An Empirical Analysis of the Confirmation Hearings of the Justices of 
                      the Rehnquist Natural Court

  (By Jason J. Czarnezki, Marquette University; William K. Ford, John 
   Marshall Law School; and Lori A. Ringhand, University of Kentucky)

       Despite the high degree of interest generated by Supreme 
     Court confirmation hearings, surprisingly little work has 
     been done comparing the statements made by nominees at their 
     confirmation hearings with their voting behavior once on the 
     Supreme Court. This paper begins to explore this potentially 
     rich area by examining confirmation statements made by 
     nominees regarding three different methods of constitutional 
     interpretation: stare decisis, originalism and the use of 
     legislative history. We also look at nominees' statements 
     about one specific area of law: protection of the rights of 
     criminal defendants. We then compare the nominees' statements 
     to decisions made by the Justices once confirmed. Our results 
     indicate that confirmation hearings statements about a 
     nominee's preferred interpretive methodologies provide very 
     little information about future judicial behavior. Inquiries 
     into specific issue areas--such as the rights of criminal 
     defendants--may be slightly more informative. We emphasize, 
     however, that this study is a preliminary look at this issue. 
     As such, we hope this piece stimulates discussion regarding 
     how to best use the wealth of information provided by 
     confirmation hearings to facilitate a better understanding of 
     the role those hearings do--or could--play in shaping the 
     jurisprudence of the Supreme Court.

                          ____________________