Legal Commentary

With the meat of the Kagan hearings getting underway this morning, I read the fine new study by Lori Ringhand (UGA Law) and Paul Collins (North Texas Political Science). They coded the subjects of all questions, answers, and comments from hearings going back to 1939 into fairly precise categories ("Civil Rights," "Criminal Justice" "Judicial Philosophy/Interpretive Methods," etc.). They then show that the hearings do deal with a great deal of content on these subjects, particularly certain categories. They also show that there have been increases in both the numbers of questions/comments from the committee and answers/comments from the nominee. They further show that this increase began not with the Robert Bork hearings in 1987, but actually a year earlier with William Rehnquist's nomination to be Chief.*

Although Ringhand and Collins don't say it in so many terms, the conclusion people are drawing is that hearings are substantive, meaningful, and beneficial, not the "vapid and hollow charade" that Professor Kagan decried in her sure-to-be-talked-about 1995 article.

But this conflates the subjects discussed and the substance with which they are discussed. The questions, answers, and comments certainly are directed to important subjects. But (except for Bork) they do so in meaningless platitudes, oversimplifications, outright misstatements, or empty political rhetoric and invective ("activist," "outside the mainstream")--and sometimes a combination of all of these. The problem is not the subjects discussed, but their content. Put differently, the problem is not a quantitative one, but a qualitative one. So John Roberts and Sonia Sotomayor both talked about judicial philosophy--"umpires," "balls and strikes," "apply law to fact"--but in terms that no one could possibly take seriously (including, I expect, the nominees themselves). Sotomayor and Samuel Alito were asked about civil rights--"Doesn't your decision in Ricci, reversed by the Supreme Court, show that you let your personal views influence how you decide cases for those groups you like" "Doesn't your decision in Grove City College, reversed by the Supreme Court, show that you don't like civil rights and let those views influence how you decide cases"--but in entirely result-oriented terms. And that is before we get into the nominee's non-answer answers.

Yesterday's opening comments suggest nothing is going to change this week.

• One of the great ironies of 1986 is that Rehnquist underwent a bruising battle for his elevation to Chief, while Antonin Scalia, nominated at the same time to fill Rehnquist's seat as Associate Justice, largely got a pass. Think the Democrats want that one back?

[Cross-posted at ACSBlog]