Judicial Appointments in the UK and the US (Part I)

[Posted on behalf of Graham Gee]

The HL Constitution Committee is currently looking at The Judicial Appointments Process. Two questions stood out in the call for evidence: question 9 (on whether there are lessons to be drawn from other jurisdictions) and 21 (on whether there is a case for parliamentary hearings for senior judicial posts). These questions are related insofar as debates in the UK about parliamentary scrutiny of senior judicial appointments tend to be conducted in the shadow of confirmation hearings for the US Supreme Court. Reference is usually made to the US hearings to bolster the case against parliamentary scrutiny of judicial appointments. For the lesson that most commentators in the UK draw is that confirmation hearings have led to the ‘politicization’ of appointments to the US Supreme Court. It was thus pleasing to see Professor Alan Paterson offer a qualified defence of the US experience during his evidence before the Committee last week. Following Professor Paterson’s lead, and drawing on written evidence I’ve submitted to the Committee, I use this post to debunk three ‘myths’ about hearings for the US Supreme Court. (In a later post, I seek to debunk some common myths about the role of judicial elections for appointments to state judiciaries in the US).

Myth 1: Hearings are the primary source of the politicization of appointments

Hearings are a fairly recent innovation. The first was held in 1939, and hearings only became routine from 1952. Yet, political conflict was an occasional feature of the appointment process before 1939. All told, there have been 29 unsuccessful nominations in the Court’s history, 22 of them long before the very first hearing in 1939.

It is true that some nominations have trigged political conflict. But what is often overlooked is that most nominations have not. To illustrate this, consider how the Senate has actually voted in confirmation proceedings. Since 1969, the Senate has confirmed 15 Justices and 2 Chief Justices by a combined vote of 1,336 to 264. During the same period the Senate has rejected 3 nominations by a vote of 164 to 132 (with a further 2 nominations withdrawn before a vote was taken).

It is also true that the level of opposition to nominees seems to have increased in recent years, at least in terms of the numbers of votes cast by the Senate. However a better explanation for recent episodes of political conflict stems from the newly aggressive nomination strategies adopted by some recent Presidents.

It is well known that the Court has assumed an increasingly prominent role over the last sixty years. It is widely accepted that this is one reason why appointments attract considerable attention—and, from time to time, political controversy. Less appreciated is that as the Court’s influence over constitutional matters has risen, so Presidents have become increasingly aware of their limited capacity to influence constitutional affairs. For example, Presidential attempts to spearhead movements to amend the Constitution have failed and as have attempts to strip federal courts of jurisdiction over contentious social issues such as abortion and school prayers. As a result some Presidents have turned to judicial appointments in an attempt to shape the constitutional agenda by selecting a nominee who falls outside the mainstream of constitutional thought and who might, if appointed, seek to upend the settled precedent of the Supreme Court (e.g. Robert Bork).

In broad terms, it might be said that if presented with a nominee whose judicial ideology falls outside the mainstream of constitutional thought, the Senate is likely to reject the nomination. If presented with a more moderate nominee, the Senate is likely to confirm (provided, that is, that the nominee is suitably qualified and has a record of professional integrity). Insofar as the Senate might refuse to confirm a controversial nominee who might seek to upturn settled precedent, the Senate process—including the hearing—can be said to uphold the independence of the Supreme Court. Hence, whereas confirmation processes are often said to imperil the independence of the judiciary, it might be that sometimes the opposite is in fact nearer the truth. For in the US context, the Senate’s involvement provides a means to protect the Supreme Court from presidential attempts to transform the interpretation and construction of the Constitution.

Myth 2: The Questioning of Nominees is Inappropriate

The hearings have been criticised for encouraging the inappropriate questioning of nominees about their judicial ideology. However, there are two main reasons why the Senate is entitled to question nominees about their judicial ideology. First, a nominee’s judicial ideology would influence how they would vote—if confirmed —on the issues that would come before them, and it is thus appropriate for the Senate to question them on it. Those opposed to questioning a nominee about their judicial ideology must argue either that a nominee’s ideology is unlikely to affect how they decide the cases before them or that even if ideology shapes their decisions, a nominee should not be questioned about it by the Senate. Nether argument is attractive when it applies to members of as powerful an institution as the US Supreme Court. Second, it is plain that the President considers a person’s judicial ideology when deciding whether to nominate them to the Supreme Court and so should the Senate, since otherwise there is too much scope for Presidents to mould the Court in their own image. It is true that Senators have been criticised for asking questions that require a nominee to pledge to decide specific types of cases in a certain way. This is a valid criticism. That said, it is worth remembering that most nominees have repeatedly (and quite properly) refused to answer such questions.

Myth 3: The Questioning of Nominees is Futile

The questioning of nominees about their judicial ideology is sometimes said to be futile. Recent nominees have often provided bland and uncontroversial answers. Thus, the Senators’ questions are said to be futile insofar as they fail to elicit any interesting or novel information. But this neglects the fact that the hearing is only one part of the Senate’s scrutiny of a nominee. Prior to the hearing, the Senate’s Judiciary Committee will already have researched the background, credentials and writings of the nominee. It will have received reports about the nominee from the FBI, the Congressional Research Service and the American Bar Association. Face-to-face meetings will already have been held between the nominee and members of the Senate Judiciary Committee.

The questioning is also said to be futile insofar as the Senate can never be certain that a nominee’s judicial ideology will not change. This is certainly true. However, the fact that there can be no certainty on this front does not render the Senate’s questioning futile. The questioning of a nominee has multiple purposes, only one of which is to elicit information. It also provides a forum for the Senate to discuss issues of national importance—and, in this, to signal the Senate’s concerns to the judiciary and public at large (e.g. the discussions of racism in the nominations of Rehnquist, Haynsworth and Carswell). Hearings also provide an opportunity to ask the nominee about any specific charges which emerge during the confirmation process (e.g. Clarence Thomas).

Concluding Thought

None of this should be taken to deny that here are problems with the process for appointments justices of the US Supreme Court. Nor should it be taken to deny that the confirmation hearings can be messy, partisan and aggressive. Rather, this post should be taken as a reminder that hearings are not the primary source of the politicization of the process. Above all, this post cautions us against making two mistakes all too common in UK discussions of the US process. The first mistake is to focus only on the Senate’s role in confirming the nominee, and to neglect the President’s role in selecting nominee in the first place. Both the initial nomination by the President and the subsequent confirmation by the Senate must always be kept in mind. This first mistake is often compounded by a second mistake, namely focusing only on the Senate hearing. The hearing is only one part in the Senate’s scrutiny of the President’s nominee.

 

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