Beginning Monday, Senate confirmation hearings will be held for Judge Ketanji Brown Jackson (President Biden’s Supreme Court nominee). Modern confirmation hearings have many flaws, and there is no shortage of critics decrying recent hearings as useless, ridiculous, a “circus,” or even “verging on the absurd.” Many of these criticisms are legitimate. It is true, for example, that the Senators often make grandstanding statements rather than serious inquiries into the qualifications of the nominee.
However, confirmation hearings have a purpose. This is why I wrote an October 2020 post explaining my reasons, which was written while the Senate was considering Amy Coney Barrett’s nomination. I stand by most of my statements today.
[T]Even with their many flaws, the hearings are useful. This requirement for the nominee to complete this task deters cronies or hacks from being nominated. It also prevents them looking stupid on national television. You can do this as [Adam]White stated that “the process discourages palpably incompetent nominations.” The president knows that a senator can ask questions about a nominee and they are unable to nominate judges who do not have a basic knowledge of the law.
Opposing party senators and others have the opportunity to look into possible ethical or other shortcomings in the background of nominees during the confirmation process. This too helps deter some of the worst potential nominees….
I had significant disagreements and reservations with all the justices who were confirmed in my professional life. All are competent jurists and have not been made to look like mere minions by any president or political party. In the cases of Neil Gorsuch and Sonia Sotomayor, they have even turned out to be significantly better in some respects than I expected at the time….
Using outside experts witnesses against and for the nominee also allows them (and senators) the opportunity to draw attention to legal issues that might not otherwise get the same amount of airtime. This was something I witnessed firsthand when I appeared at the confirmation hearing of then-Judge Sonia Sotomayor in 2009. I became perhaps the first witness to address constitutional property rights issues at such hearings. The fact that I was the one testifying did not matter. These important questions, such as asset forfeiture and eminent domain, received national attention. Insightful testimony has been given at recent confirmation hearings on topics such as executive power and the strengths/weaknesses of living constitutionalism or originalism.
A small number of voters will likely not watch the parts that involve outside witnesses, as opposed to the nominee. But that minority is still many more people than would pay attention to most such constitutional issues at other times….
Although most questions and answers during confirmation hearings don’t have much value, sometimes they provide valuable insight. Just this week, Barrett’s answers to various senators’ questions provided some helpful insight on her likely approach to the Obamacare severability case currently before the Supreme Court….
Notable is the fact that Barrett’s responses to the Obamacare Severability Case case prefigured her vote when the Court issued that decision just a few months later. She voted against the challenge presented by a coalition red state governments, which was largely backed by Trump’s administration.
While it’s okay to lament the shortcomings of Supreme Court confirmation hearings, I sometimes do it myself! However, it is important to keep in mind that our lives would be much worse without them.