Eric Segall: How to Fix our Broken Confirmation Process - Dorf on Law

Dorf on Law: How to Fix our Broken Confirmation Process

By Eric Segall

If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation.

But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to the idea that judges "interpret don't make the law." And of course there were far more speeches by Senators on both sides of the aisle than questions. As always, it was one big charade.

The most serious problem with all of the confirmation hearings since Judge Bork's is that they lack any substance. If you do not believe me, here is Justice Kagan writing in 1995 in the University of Chicago Law Review:

The Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct. Like other kinds of legislative fact-finding, this inquiry serves both to educate members of the Senate and public and to enhance their ability to make reasoned choices. Open exploration of the nominee's substantive views, that is, enables senators and their constitutuents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters.

Of course, Justice Kagan largely ignored this critique during her own confirmation hearing and walked back the most important points she made in her discussion of the process in her scholarship.