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Can the Senate Examine the Constitutional Philosophies of Supreme Court Nominees?

Published online by Cambridge University Press:  02 September 2013

Michael Comiskey
Michael Comiskey*
Affiliation:
Penn State Fayette Campus
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Extract

In the last 40 years, universal recognition of the Supreme Court's important policy-making role, the prevalence of divided government, and heightened conflict over value-laden issues such as abortion and school prayer have led to ever more elaborate Senate review of Supreme Court nominations (Freund 1988; Ross 1987, 116-23). Senate hearings into nominees' views on constitutional issues comprise the most visible element in the expanded confirmation process. Yet most recent nominees have won Senate approval while revealing little of their legal or political philosophies. As Powe (1976, 893) has concluded, “Senate questioning [of nominees] has proved astonishingly ineffective in eliciting the desired information.” The ability of nominees to hide their beliefs on vital constitutional questions raises serious doubts about the Senate's ability to give informed consent to presidents' Supreme Court nominations.

This article examines confirmation hearings on recent, pre-Clinton Supreme Court nominees to answer two questions. First, given the recognized importance of Supreme Court appointments and the correspondingly systematic scrutiny of nominees, how do nominees get away with revealing so little of their views on vital constitutional issues? Second, given the answers to the first question, can the hearings be reformed so that senators may air a nominee's views more thoroughly and give—or withhold—truly informed consent to these nominations?

Type
Research Article
Information
PS: Political Science & Politics , Volume 26 , Issue 3 , September 1993 , pp. 495 - 500
Copyright
Copyright © The American Political Science Association 1993

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Footnotes

*

The author would like to thank Fred I. Greenstein, D. Grier Stephenson, Jr., David Schultz, Mark C. Miller, Jeffrey A. Segal, and Neal Skene for their helpful comments. Any shortcomings in the article are the author's responsibility.

References

American Bar Association. 1972. Model Code of Judicial Conduct. Chicago: American Bar Association.Google Scholar
Apple, R. W. 1991a. “The Great Divide: Spectacles Like the Thomas Hearings Are the Cost of Political Standoff.” New York Times 20 October 1991, sec. 4, 1.Google Scholar
Apple, R. W. 1991b. “Senate Confirms Thomas 52-48, Ending Week of Bitter Battle.” New York Times 16 October 1991, A1.Google Scholar
Cameron, Charles, Cover, Albert, and Segal, Jeffrey. 1990. “Senate Voting on Supreme Court Nominees: A Neoinstitutional Model.” American Political Science Review 84:525–34.CrossRefGoogle Scholar
Carter, Stephen. 1988. “The Confirmation Mess.” Harvard Law Review 101: 1185–1201.CrossRefGoogle Scholar
Cohodas, Nadine. 1987a. “Kennedy Finds Bork an Easy Act To Follow.” Congressional Quarterly Weekly Report 5 December 1987, 2989–90.Google Scholar
Cohodas, Nadine. 1987b. “Kennedy Hearings Indicate Easy Confirmation.” Congressional Quarterly Weekly Report 19 December 1987, 3129–33.Google Scholar
Fein, Bruce. 1989. “A Circumscribed Senate Confirmation Role.” Harvard Law Review 102:672–87.CrossRefGoogle Scholar
Freund, Paul. 1988. “Appointment of Justices: Some Historical Perspectives.” Harvard Law Review 101:1146–63.CrossRefGoogle Scholar
Gallup, George Jr. 1987. The Gallup Poll: Public Opinion 1986. Wilmington, DE: Scholarly Resources.Google Scholar
Greenhouse, Linda. 1986. “The Court, the Congress and the White House.” New York Times 10 August 1986, sec. 4, 1.Google Scholar
Greenhouse, Linda. 1987. “The Bork Nomination: In No Time at All, Both Proponents and Opponents Are Ready for Battle.” New York Times 9 July 1987, A24.Google Scholar
Greenhouse, Linda. 1990a. “An ‘Intellectual Mind.’” New York Times 24 July 1990, A1.Google Scholar
Greenhouse, Linda. 1990b. “At Home State's Court, Opinions in a Direct, Uncomplicated Style.” New York Times 25 July 1990, A13.Google Scholar
Greenhouse, Linda. 1991. “Sticking to the Script.” New York Times 12 September 1991, A21.Google Scholar
Lubet, Steven. 1990. “Confirmation Ethics: President Reagan's Nominees to the Supreme Court.” Harvard Journal of Law and Public Policy 13:229–62.Google Scholar
Macedo, Stephen. 1991. “Stricter Senate Review.” New York Times 23 October 1991, A23.Google Scholar
MacKenzie, John P. 1991. “The Trouble with Hearings.” New York Times 24 September 1991, A30.Google Scholar
Margolick, David. 1991. “Questions to Thomas Fall Short of the Mark.” New York Times 15 September 1991, IV, 1.Google Scholar
Melone, Albert. 1991. “The Senate's Confirmation Role in Supreme Court Nominations and the Politics of Ideology versus Impartiality.” Judicature 75:68–79.Google Scholar
New York Times. 1986. “Toward a Rehnquist Court.” New York Times 18 June 1986, A34.Google Scholar
Overby, L. Martin, Henschen, Beth M., Strauss, Julie, and Walsh, Michael H. 1992. “Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas.” APSR 86(4) December, 997–1003.CrossRefGoogle Scholar
Planned Parenthood v. Casey. 1992. 120 L.Ed. 2d 674.Google Scholar
Powe, L. A. 1976. “The Senate and the Court: Questioning a Nominee.” Texas Law Review 54: 891–901.Google Scholar
Rees, Grover. 1983. “Questions for Supreme Court Nominees at Confirmation Hearings: Excluding the Constitution.” Georgia Law Review 17:913–67.Google Scholar
Roberts, Stephen. 1986. “Selection Praised by GOP Senators.” New York Times 18 June 1986, A32.Google Scholar
Roev. Wade. 1973. 410 U.S. 113.Google Scholar
Ross, William. 1987. “The Questioning of Supreme Court Nominees at Senate Confirmation Hearings: Proposals for Accommodating the Needs of the Senate and Ameliorating the Fears of the Nominees.” Tulane Law Review 62:109–74.Google Scholar
Segal, Jeffrey. 1987. “Senate Confirmation of Supreme Court Justices: Partisan and Institutional Politics.” The Journal of Politics 49:998–1015.CrossRefGoogle Scholar
Skene, Neil. 1990. “The Politics of Silence of Court Nominees.” Congressional Quarterly Weekly Report 3 November 1990, 3774.Google Scholar
Skene, Neil. 1991. “‘Advice and Consent’: Atrophying Power.” Congressional Quarterly Weekly Report 5 October 1991, 3774.Google Scholar
Suro, Roberto. 1991. “Thomas's Foes, Off to Slow Start, Say Swaying Public Will Be Hard.” New York Times 8 September 1991, A22.Google Scholar
Taylor, Stuart. 1981. “Rather an Unknown.” New York Times 8 July 1981, A13.Google Scholar
Taylor, Stuart. 1986a. “More Vigor for the Right.” New York Times 18 June 1986, A1.Google Scholar
Taylor, Stuart. 1986b. “Rehnquist to Scalia: Bitterness to Bonhomie.” New York Times 8 August 1986, A8.Google Scholar
Tolchin, Martin. 1991. “Bush Lambasts House and Senate.” New York Times 25 October 1991, A1.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1981. Nomination of Judge Sandra Day O'Connor of Arizona To Serve as an Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary. 97th Cong., 1st sess., 9, 10, 11 September.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1986a. Nomination of Judge Antonin Scalia To Be Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary. 99th Cong., 2nd sess., 5, 6 August.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1986b. Nomination of William H. Rehnquist To Be Chief Justice of the United States: Report, from the Committee on the Judiciary, together with Additional, Minority, and Supplemental Views. 99th Cong., 2nd sess.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1987a. Nomination of Anthony M. Kennedy To Be Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary. 100th Cong., 1st sess., 14, 15, 16 December.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1987b. Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary. 100th Cong., 1st sess., 15, 16, 17, 18, 19, 21, 22, 23, 25, 28, 29, 30 September.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1990. Nomination of David H. Souter To Be Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary. 101st Cong., 2nd sess., 13, 14, 17, 18, 19 September.Google Scholar
U.S. Congress. Senate. Committee on the Judiciary. 1991. Nomination of Clarence Thomas To Be an Associate Justice of the United States Supreme Court: Report together with Additional and Supplemental Views. 102nd Cong., 1st sess.Google Scholar
U.S. Congress. Senate. 1992. Remarks of Sen. Mitchell and Report of the Task Force on the Confirmation Process. 102nd Cong., 2nd sess. Congressional Record, Digest (for February), vol. 138, no. 12, 5892–98.Google Scholar
Wasby, Stephen. 1988. The Supreme Court in the Federal Judicial System, 3rd ed. Chicago: Nelson-Hall.Google Scholar