This book does exactly what a scholarly manuscript ought to do: It offers a novel theoretical interpretation of a long-known phenomenon, makes arguments backed up with empirical evidence and accompanied by real-life examples, and makes one think. While it remains debatable whether theirs is the “right” view of the phenomenon under study, it is absolutely the case that it ought to be taken seriously and widely discussed and debated. Indeed, I urge everyone with an interest in confirmation hearings and in the interplay between Congress, the Supreme Court, and the public, to engage with their analysis and discuss its implications. After summarizing their argument, I will do so here, in hopes of beginning the conversation.
In their book, Collins and Ringhand analyze Supreme Court confirmation hearings, attributing to them more meaning than has been so attributed to date. The conventional wisdom is basically that Senators are grandstanding and playing to their constituents as they ask long-winded statement/questions while the nominees themselves decline to answer the most basic of questions concerning their views on relevant issues. We already know, from other scholarly research, that the latter is not true; Justice-Nominees do indeed answer most of the questions posed to them. In addition, although, Collins and Ringhand ascribe much more meaning to the questioning arguing that these hearings constitute “a democratic forum for the discussion and ratification of constitutional change” (p. 10). They make the case for their much-more-charitable interpretation of these events by showing that Senators ask questions about issues that are important to the public, and that the conversations they have with nominees are grounded in Supreme Court precedent. This translates, they argue, into evidence that, through the process, the Senate informs the public of Supreme Court precedent, takes a position informed by public opinion on the constitutional interpretation choices made in those precedents, and communicates to Supreme Court nominees the expectation that they will abide by those preferred, public-opinion-ratified constitutional understandings. They test these claims via two empirical chapters and several qualitative analyses, finding support for their view.
Their characterization of the hearings as a democratic forum for constitutional discussion is intriguing. Indeed, many legal scholars argue that judges ought not be exclusively charged with interpreting the constitution, so a construal of the confirmation hearings that considers a “people's constitution,” as many scholars call it, is attractive. Is it possible that these hearings are the official way in which “the people” contribute to a constitutional conversation? Perhaps, although I have a few doubts making me resist Collins and Ringhand's notion.
Most importantly, I continue to struggle with considering the questions asked by Senators to constitute a constitutional conversation, expecting instead that they are either a way for Senators to wax eloquent on issues important to their voters, or a way for Senators to predict how the nominee will vote. The findings reported in the book remain consistent with both notions: Senators ask about policies, not about theories of constitutional interpretation; and the largest impact on questioning is the amount of legislation in a particular issue area and not the most important issue or the amount of Supreme Court precedent in an issue area (although they each matter as well). Since issues currently being legislated are both important to the Senators and likely to be tested by future Courts, it seems likely that Senators ask about them to predict how the nominee will vote if seated. This is also likely why they focus on policy questions and not on more esoteric interpretation questions. Since issues important to the people may well serve as drivers of their votes, it seems likely that Senators pay heed to take advantage of the spotlight and curry favor with voters. In general, while the account offered by Collins and Ringhand is interesting and provocative, I am not convinced the alternative hypothesis of attention to policy is wholly refuted. And, while the authors argue that it matters not whether, after confirmation, the justices go on to vote in ways consistent with their hearing testimony, I think it absolutely does for if they abandon the principles they espoused at the hearing, then surely no real constitutional discussion has taken place. In that case (Sotomayor on the Second Amendment, for example), we have merely witnessed a political show.
I do find the argument about confirmation conditions (that certain cases, like Brown v. Board of Education, are so settled that a nominee would be disqualified were he or she to express disagreement with them) compelling, although we likely have far too little data to analyze it rigorously. They argue that Judge Bork's confirmation problem was not that he answered too many questions (as many would argue), but rather that he gave the wrong answers. Perhaps Bork was just too far outside the constitutional mainstream in general, but it might be that they are right and precedents could be identified that are game-changers in terms of confirmation hearings. I am simply uncertain how many of those there are that will hold up for the long term. Again, because there is policy inherent in these constitutional choices, it is difficult to argue that any of the Court's precedents/interpretations of the constitution are sacrosanct, and it seems to me one needs that sort of permanency to make the argument for a confirmation condition that is distinct from a policy interest. Adding the public into the mix further complicates the picture as the public is likely divided over many of these questions and likely less informed than necessary to warrant considering their opinions in a constitutional conversation.
Regardless of my questions and my expressions of doubt, although, is the bottom line on this book: Collins and Ringhand challenge conventional wisdom on the purpose of confirmation hearings in a way that will force scholars of the process to think and to find additional ways to test their theory in future research, injecting new life into the study of confirmation politics. In other words and as noted earlier, the book does exactly what a scholarly book ought to do.
