How the Garland Confirmation Hearing Might Go--And What That Means
by Michael Dorf
My students and I finished our Federal Courts syllabus a little early, so for our final class of the semester we tried something different. Because the Senate apparently will not hold a confirmation hearing for Judge Merrick Garland (except perhaps during the lame-duck session should a Democrat win the White House and the Democrats secure a Senate majority), we decided to do it ourselves. Accordingly, I play-acted as Judge Garland, with the students acting as Senators.
We aimed for verisimilitude, but fell short in a few respects. For example, I permitted each student to decide for himself or herself whether to ask questions as a generic Senator or as a particular one--and some chose to portray Senators who don't serve on the Judiciary Committee. Thus, two questioners identified themselves as, respectively, Marco Rubio and Bernie Sanders, neither of whom is on the Judiciary Committee. Another difference was that "Senators" mostly asked questions, rather than giving speeches. Beyond that, we tried to stay in role. Click here to see the results or watch below:
Prior to the session, I assigned the students to read now-Justice/then-Professor Elena Kagan's 1995 essay in the U Chicago Law Review, reviewing Yale Law Professor Stephen Carter's 1994 book The Confirmation Mess. Kagan's essay argues that Carter's thesis was almost exactly backwards. Carter's book was written in reaction to the Bork nomination hearing, which Carter regarded as disastrous because of what Carter regarded as mischaracterizations of Bork's record. Instead of focusing on ideology, Carter proposed that the Senate should scrutinize a nominee's credentials and personal morality.
Kagan says in her review that Carter's proposed focus on personal morality will yield something like phase two of the Clarence Thomas confirmation hearing (featuring Anita Hill's allegation of sexual harassment). She praises most of what happened during the Bork hearing as substantive and valuable. Meanwhile, she points out that with the exception of the Thomas hearing, the post-Bork hearings (Kennedy, Souter, Ginsburg, and Breyer) were notable for their lack of substance. These nominees mostly limited themselves to platitudes and what Kagan characterizes as a "pincer" movement: If a question asks about a specific issue, the nominee declines to answer on the ground that doing so could pre-judge an issue that might come before the Court; if a question asks about general matters such as judicial philosophy or broad principles in a particular case, the nominee declines to answer on the ground that judges don't like to decide abstract questions. Subsequent confirmation hearings (including Kagan's) have generally proceeded along similar lines.
In my role as Judge Garland, I tried to limit my use of the pincers. Instead, I mostly relied on another technique that has been deployed by various nominees over the last 30 years. Whenever possible, I answered a question by describing current law in great detail (thus demonstrating my, or rather, Judge Garland's, professional qualifications), and then describing arguments that might be made to change the law, without indicating that I would or would not find those arguments persuasive. I'm sure I flubbed the job in various ways. Some of what I said might well be wrong as a matter of describing the law or Judge Garland's record. All I did to prepare was read the Wikipedia entry on Judge Garland, and even then, I probably didn't remember all of the details exactly.
Flaws in my performance aside, I found the exercise quite interesting. Mostly I was struck by how difficult it is to give an accurate description of the law without giving any clues about my substantive views, but also seeming to answer the question. I was trying, as Woody Allen's character puts it in the concluding scene in The Front, to answer without replying. It's very hard to do. Any reasonably intelligent questioner can tell when an answer to his or her question is non-responsive.
What, if anything, does the experience say about the likely path of future nominations? That will depend on how the politics of the current Senate Republicans' approach to the Garland nomination play out.
Suppose 2017 produces a Democratic president and a Democratic majority in the Senate. In this scenario, we could imagine a deal of sorts. Enough Republican Senators might agree not to filibuster for the nominee to get to 60, and in exchange President Clinton or Sanders re-nominates Garland. I think that Republicans would be wise to give such a deal or to confirm Garland in the lame-duck session, because after playing the let-the-next-president-choose card, they will be poorly positioned then to block a vote on the next president's nominee, who could be more liberal than Garland. I'm pretty sure a President Sanders would turn down this deal. It's less clear what a President Clinton would do. An alternative for the Democrats would be simply to go nuclear, abolish the filibuster for SCOTUS nominees, and have the Democratic Senate confirm whomever the Democratic president nominates without any Republican support.
We get the same rough calculus if the parties' positions are reversed. A President Trump with a Republican Senate would likely nominate someone who would need to be confirmed without Democratic support, which in turn, would require the Senate to go nuclear.
Once either party goes nuclear and it only takes 51 votes to confirm a justice, then confirmation hearings will lose their modern character, at least whenever the same party controls the White House and the Senate. Up until now, the looming possibility of a filibuster has driven the reticence of nominees. To get 60 votes for cloture the nominee had to avoid taking controversial positions on abortion, affirmative action, guns, etc., because there was no position on these issues that wouldn't alienate at least 41 Senators. But with a threshold of 51, a nominee has much greater freedom to state his or her actual views, so long as they conform to the party line.
Given current trends, I think there is a reasonably strong probability that at some point in the next eight years, we will have the White House and the Senate in the hands of the same party, and that this will result in the abolition of the filibuster for SCOTUS nominees. What happens after that when the Senate is in different hands from the presidency?
Historically, the answer is that the president nominates a moderate who is then confirmed with at least substantial support from the other party in the Senate. But increasing polarization and the current episode with Judge Garland lead me to think that in the future I'm imagining, an opposition Senate will almost never confirm a nominee, although future Senates might find it expedient to hold show confirmation hearings.
In other words, something like the Senate Republican approach to Judge Garland could be the new normal in periods of divided government. If a vacancy occurs while the Senate and the presidency are in the control of different parties, that vacancy will not be filled until the Senate and the presidency are back in the control of the same party. In this possible future, nominees will have greater freedom to state their actual views during their confirmation hearings, but the hearings will be unimportant because they will lead to a foregone conclusion.
We aimed for verisimilitude, but fell short in a few respects. For example, I permitted each student to decide for himself or herself whether to ask questions as a generic Senator or as a particular one--and some chose to portray Senators who don't serve on the Judiciary Committee. Thus, two questioners identified themselves as, respectively, Marco Rubio and Bernie Sanders, neither of whom is on the Judiciary Committee. Another difference was that "Senators" mostly asked questions, rather than giving speeches. Beyond that, we tried to stay in role. Click here to see the results or watch below:
Prior to the session, I assigned the students to read now-Justice/then-Professor Elena Kagan's 1995 essay in the U Chicago Law Review, reviewing Yale Law Professor Stephen Carter's 1994 book The Confirmation Mess. Kagan's essay argues that Carter's thesis was almost exactly backwards. Carter's book was written in reaction to the Bork nomination hearing, which Carter regarded as disastrous because of what Carter regarded as mischaracterizations of Bork's record. Instead of focusing on ideology, Carter proposed that the Senate should scrutinize a nominee's credentials and personal morality.
Kagan says in her review that Carter's proposed focus on personal morality will yield something like phase two of the Clarence Thomas confirmation hearing (featuring Anita Hill's allegation of sexual harassment). She praises most of what happened during the Bork hearing as substantive and valuable. Meanwhile, she points out that with the exception of the Thomas hearing, the post-Bork hearings (Kennedy, Souter, Ginsburg, and Breyer) were notable for their lack of substance. These nominees mostly limited themselves to platitudes and what Kagan characterizes as a "pincer" movement: If a question asks about a specific issue, the nominee declines to answer on the ground that doing so could pre-judge an issue that might come before the Court; if a question asks about general matters such as judicial philosophy or broad principles in a particular case, the nominee declines to answer on the ground that judges don't like to decide abstract questions. Subsequent confirmation hearings (including Kagan's) have generally proceeded along similar lines.
In my role as Judge Garland, I tried to limit my use of the pincers. Instead, I mostly relied on another technique that has been deployed by various nominees over the last 30 years. Whenever possible, I answered a question by describing current law in great detail (thus demonstrating my, or rather, Judge Garland's, professional qualifications), and then describing arguments that might be made to change the law, without indicating that I would or would not find those arguments persuasive. I'm sure I flubbed the job in various ways. Some of what I said might well be wrong as a matter of describing the law or Judge Garland's record. All I did to prepare was read the Wikipedia entry on Judge Garland, and even then, I probably didn't remember all of the details exactly.
Flaws in my performance aside, I found the exercise quite interesting. Mostly I was struck by how difficult it is to give an accurate description of the law without giving any clues about my substantive views, but also seeming to answer the question. I was trying, as Woody Allen's character puts it in the concluding scene in The Front, to answer without replying. It's very hard to do. Any reasonably intelligent questioner can tell when an answer to his or her question is non-responsive.
What, if anything, does the experience say about the likely path of future nominations? That will depend on how the politics of the current Senate Republicans' approach to the Garland nomination play out.
Suppose 2017 produces a Democratic president and a Democratic majority in the Senate. In this scenario, we could imagine a deal of sorts. Enough Republican Senators might agree not to filibuster for the nominee to get to 60, and in exchange President Clinton or Sanders re-nominates Garland. I think that Republicans would be wise to give such a deal or to confirm Garland in the lame-duck session, because after playing the let-the-next-president-choose card, they will be poorly positioned then to block a vote on the next president's nominee, who could be more liberal than Garland. I'm pretty sure a President Sanders would turn down this deal. It's less clear what a President Clinton would do. An alternative for the Democrats would be simply to go nuclear, abolish the filibuster for SCOTUS nominees, and have the Democratic Senate confirm whomever the Democratic president nominates without any Republican support.
We get the same rough calculus if the parties' positions are reversed. A President Trump with a Republican Senate would likely nominate someone who would need to be confirmed without Democratic support, which in turn, would require the Senate to go nuclear.
Once either party goes nuclear and it only takes 51 votes to confirm a justice, then confirmation hearings will lose their modern character, at least whenever the same party controls the White House and the Senate. Up until now, the looming possibility of a filibuster has driven the reticence of nominees. To get 60 votes for cloture the nominee had to avoid taking controversial positions on abortion, affirmative action, guns, etc., because there was no position on these issues that wouldn't alienate at least 41 Senators. But with a threshold of 51, a nominee has much greater freedom to state his or her actual views, so long as they conform to the party line.
Given current trends, I think there is a reasonably strong probability that at some point in the next eight years, we will have the White House and the Senate in the hands of the same party, and that this will result in the abolition of the filibuster for SCOTUS nominees. What happens after that when the Senate is in different hands from the presidency?
Historically, the answer is that the president nominates a moderate who is then confirmed with at least substantial support from the other party in the Senate. But increasing polarization and the current episode with Judge Garland lead me to think that in the future I'm imagining, an opposition Senate will almost never confirm a nominee, although future Senates might find it expedient to hold show confirmation hearings.
In other words, something like the Senate Republican approach to Judge Garland could be the new normal in periods of divided government. If a vacancy occurs while the Senate and the presidency are in the control of different parties, that vacancy will not be filled until the Senate and the presidency are back in the control of the same party. In this possible future, nominees will have greater freedom to state their actual views during their confirmation hearings, but the hearings will be unimportant because they will lead to a foregone conclusion.