Legal Commentary

?Vapid and Hollow? or Substantive and Illuminating?

By Jonathan H. Adler

In today?s NYT, Adam Liptak reports on a new study by political scientists Lori Ringhand and Paul Collins Jr. analyzing the questions asked at Supreme Court confirmation hearings over the past 70 years.

a new study, based on an analysis of every question asked and every answer given at Supreme Court confirmation hearings in the last 70 years, shows that the hearings often address real substance, illuminate the spirit of their times and change with shifts in partisan alignments and the demographic characteristics of nominees.The study also refutes the common mistaken belief that questions about abortion rights have played a dominant role in confirmation hearings since Roe v. Wade was decided in 1973. And it finds that female and minority nominees are questioned more closely than white male ones.

This is quite a different view than Elena Kagan espoused in 1995.  In her article, ?Confirmation Messes, Old and New,? 62 U. Chi. L. Rev. 919 (1995), she characterized most confirmation hearings as a ?vapid and hollow charade.?  She viewed the Bork hearings as uncharacteristcally substantive, and urged Senators to demand nominees follow that example going forward.  Ringhand and Collins, on the other hand, view the Bork hearing as less than an outlier, at least based upon the questioning he received.

What does this mean for the Kagan hearings, which start today?  From Liptak:

It is possible to make some predictions about the questions Ms. Kagan will face based on the study?s data, which track trends from the first unrestricted Supreme Court confirmation hearing, of Felix Frankfurter in 1939, through the latest one, of Sonia Sotomayor last summer.

?Kagan?s hearings are probably going to be dominated by civil rights issues and the Second Amendment,? said Paul M. Collins Jr., an assistant professor of political science at the University of North Texas and one of the study?s authors.

?We?re going to see her pressed very similarly to Sotomayor about judicial philosophy,? Professor Collins said, ?especially by Republican senators, who have taken a kind of issue ownership of that issue. Republicans have won the rhetoric war. They own phrases like ?judicial activism? and ?judicial restraint.? ?

The study, ?May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939?2009,? is up on SSRN.  I?ve reproduced the abstract below the fold.

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate if questioning patterns differ depending on the race or gender of the nominee. Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.

Full post as published by The Volokh Conspiracy on June 28, 2010 (boomark / email).