Vol. 27 No. 6 (July 2017) pp. 89-91SUPREME COURT CONFIRMATION HEARINGS IN THE U.S. SENATE: RECONSIDERING THE CHARADE, by Dion Farganis and Justin Wedeking. Ann Arbor, University of Michigan Press. 2014. 176pp. Cloth $65.00 ISBN: 9780472119331.
Reviewed by Christine Nemacheck, Government Department, College of William and Mary. Email: clnema@wm.edu.
It seems every time there is a new appointment to the U.S. Supreme Court, the debate about the value of the Senate Judiciary Committee’s confirmation hearings swirls once again. President Trump’s nomination of Judge Neil Gorsuch to fill the seat left vacant by Justice Scalia’s death in February 2016 was no different. In fact, falling as it did on the heels of the Senate’s refusal to even meet with President Obama’s nomination of DC Circuit Court of Appeals Chief Judge Merrick Garland, anticipation for these hearings was arguably even greater than typical. Then Judge Gorsuch managed to avoid major missteps and, if anything, he appeared to some senators as almost too prepared in his responses to their questions. During the hearings, Senator Diane Feinstein (D-CA) expressed her concern with the Judge’s answers by asserting that he had been “able to avoid specificity like no one [she had] ever seen before….”
Senator Feinstein is hardly the first person to imply, or assert outright, that little new information results from the typically lengthy confirmation hearings on Supreme Court nominees. To better understand the value of these confirmation hearings, Dion Farganis and Justin Wedeking undertook an extensive examination of Supreme Court confirmation hearings between 1955 and 2010. Their book, SUPREME COURT CONFIRMATION HEARINGS IN THE U.S. SENATE: RECONSIDERING THE CHARADE, provides an excellent framework to evaluate the kinds of questions senators’ ask and the responses nominees provide during their confirmation hearings. Farganis and Wedeking’s findings on the degree of candor with which Supreme Court nominees typically respond meaningfully to senators’ questions should reassure Senator Feinstein and others that the process does produce relevant information as to their jurisprudence.
Since the mid- to late-20th Century, and perhaps particularly since the hearings on Judge Robert Bork’s Supreme Court nomination, academics and pundits alike have bemoaned Supreme Court confirmation hearings as “exercises in obfuscation.” Or, as Justice Elena Kagan put it in 1995, long before her own confirmation hearings, a “vapid and hollow charade” (p. 941). Typically such assessments are contrasted with a long-ago time when hearings resulted in richer discussions about substantive issues. Farganis and Wedeking set out to determine whether these negative views of confirmation hearings are actually supported by the evidence. The authors examined every exchange between a senator and the nominee in every Supreme Court confirmation hearing since 1955. In all, the authors analyzed 10,833 exchanges in the hearing transcripts from Justice Harlan’s 1955 hearing through Justice Kagan’s hearing in 2010.
As it underpins their analysis, Farganis and Wedeking’s data collection efforts merit some discussion. The authors coded the exchanges into two broad categories: “Questions of Fact” and “Questions of View.” Within each broad category, the authors then coded the topic of the questions asked and the degree to which the nominees’ answers were forthcoming. When nominees’ answers were not forthcoming, the exchanges were classified into one of five explanatory categories. In short, collecting and coding the data was a massive undertaking. Farganis and Wedeking developed an extensive database and followed the standard protocols for intercoder reliability.
Farganis and Wedeking find that although nominees have shown some reticence to fully [*90] answer senators’ questions, and over time there has been some modest decline in responsiveness, typical estimates of the degree to which they avoid answering questions are inflated. Even in the post-Bork confirmation era, nominees fully answer seven of every ten questions senators ask them. Furthermore, the evidence shows that there has not been a steady decline in responsiveness over the time period; instead, there have been ebbs and flows in nominees’ willingness to answer senators’ questions. At the same time, Farganis and Wedeking find that over time the kinds of questions senators ask has changed; between 1955 and 2010, senators’ questions focusing on the nominees’ views or opinions, as opposed to those focusing on facts, have increased as a percentage of total questions asked.
After presenting the descriptive data on the degree to which Supreme Court nominees are forthcoming in their responses to senators’ questions, the authors examine whether there are particular types of questions that are more likely to result in less-than-forthcoming, or qualified, responses. They divide the qualified responses into three categories: (1) Questions that focus on the nominee’s views and beliefs, (2) Questions that focus on controversial issues, and (3) Questions that come from ideologically distant senators.
Perhaps not surprisingly, the authors find that questions focusing on values and controversial issues, including civil liberties, are more likely to prompt evasive answers from nominees than are other kinds of questions. So, although overall responsiveness has only declined modestly, nominees’ responsiveness to the growing proportion of values questions in the post-Bork era help to shape the view that nominees in general are less forthcoming.
Given that the authors find more continuity in the confirmation process than the conventional wisdom would suggest, they shift their attention to explaining the flawed perception that confirmation hearings have become an “exercise in obfuscation.” In Chapter 5, they examine ideological polarization on the Senate Judiciary Committee over time, as well as the impact of televising the confirmation hearings. They find that since 1955, ideological polarization on the Senate Judiciary Committee has increased significantly. One of the repercussions of that polarization is that where earlier nominees typically received “no” votes at the committee level only if they had some obvious shortcomings or had endured some scandal, nominees since the 1980s typically received some “no” votes despite their records. Whereas Farganis and Wedeking find a positive relationship between nominee responsiveness and committee members’ confirmation votes prior to the early 1980s, during the era of televised confirmation hearings and increased partisan polarization, that relationship is no longer significant. That is, the combination of partisanship and televised hearings led to the declining importance of responsiveness in and of itself.
Farganis and Wedeking also write that their analysis undermines the conventional wisdom that senators vote against nominees who are relatively less responsive to their questions. To say that is conventional wisdom seems to me a bit of a stretch. Although senators might well use such unresponsiveness as an excuse to vote against a nominee, it is an overstatement to say that either a senator’s constituents or her colleagues would expect that a nominee’s non-responsiveness would lead an otherwise receptive senator, who shares the appointing president’s party affiliation, to vote against a Supreme Court nominee. Further, Farganis and Wedeking’s argument does not need to debunk such a myth. Their findings in and of themselves are important and debunk the predominant myth that confirmation hearings have become a circus. According to their convincing evidence, confirmation hearings have either not come to appear circus-like, or they were always that way and we are just now much more aware of it.
In explaining misperceptions about the deterioration of Supreme Court confirmation hearings, Farganis and Wedeking assert that the public wants to hear about nominees’ views on the issues and television coverage increases their opportunity learn about them. At the same time, critics find nominees’ refusal to answer some [*91] questions and the reasons they give for refusing to do so unconvincing and evasive. The combination of factors leads to the common misperception that confirmation hearings are far less substantive than in the past. Given this gap between actual nominee responsiveness and the public’s perception, it seems reasonable to consider whether negative assessments of confirmation hearings have affected the Supreme Court’s approval as an institution. Farganis and Wedeking suggest the possibility, but particularly with declining approval ratings according to Gallup and other public opinion polls, the possibility of a connection could be interesting to explore in greater depth. That is perhaps even more important over the last year or so given the importance of institutional legitimacy and executive attacks on the independence of the judicial branch more broadly.
In short, Farganis and Wedeking’s book is a substantial and important contribution to the literature on Supreme Court appointments and to our understanding of confirmation hearings. It would be a great addition to an undergraduate or graduate course on the Court. In addition, it is wonderfully written in a clear and straightforward manner with one idea logically flowing to the next. And, throughout their discussion of the quantitative results, the authors include many historical and contemporary examples to illustrate their points. I highly recommend it.
REFERENCES:
Kagan, Elena. 1995. “Review: Confirmation Messes, Old and New.” UNIVERSITY OF CHICAGO LAW REVIEW. 62(2): 919-942.
© Copyright 2017 by author, Christine Nemacheck.
