Hostname: page-component-669899f699-cf6xr Total loading time: 0 Render date: 2025-05-06T08:01:15.967Z Has data issue: false hasContentIssue false
  • English
  • Français

“No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan

Published online by Cambridge University Press:  01 January 2024

Dion Farganis  and
Justin Wedeking
Get access Rights & Permissions [Opens in a new window]

Abstract

Criticism of Supreme Court confirmation hearings has intensified considerably over the past two decades. In particular, there is a growing sense that nominees are now less forthcoming and that the hearings have suffered as a result. In this article, we challenge that conventional wisdom. Based on a comprehensive content analysis of every question and answer in all of the modern confirmation hearings—nearly 11,000 in total—we find only a mild decline in the candor of recent nominees. Moreover, we find that senators ask more probing questions than in the past, and that nominees are now more explicit about their reasons when they choose not to respond—two factors that may be fueling the perception that evasiveness has increased in recent years. We close with a discussion of the normative implications of our findings as well as an outline for future research into this issue.

Type
Articles
Information
Law & Society Review , Volume 45 , Issue 3 , September 2011 , pp. 525 - 559
Copyright
© 2011 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

The authors wish to thank Wendy Martinek for comments on an earlier version of this article, Mark Ingles for wonderful research assistance, and Art Ward and Lori Ringhand for valuable research advice. We are indebted to the editors and anonymous reviewers of the Law & Society Review for their insightful comments and invaluable suggestions.

References

Althaus, Scott L., & Kim, Young Mie (2006) “Priming Effects in Complex Environments,” 68 J. of Politics 960–76.Google Scholar
Benson, Robert W. (2010) “The Senate Farce for Kagan's Confirmation to the Supreme Court,” June 1 Huffington Post, http://huffingtonpost.com/robert-w-benson/the-senate-farce-for-kaga_kaga_b596702.html (accessed June 7, 2010).Google Scholar
Bork, Robert H. (1990) The Tempting of America: The Political Seduction of the Law. New York: Free Press.Google Scholar
Brennan, William Joseph (1957) Testimony in Hearings before the Senate Committee on the Judiciary on the Nomination of William Joseph Brennan, Jr., 85th Congress. Washington, DC: Government Printing Office.Google Scholar
Burger, Warren E. (1969) Testimony in Hearing on the Nomination of Warren E. Burger to be Chief Justice of the United States Before the Senate Committee on the Judiciary. 91st Congress. Washington, DC: Government Printing Office.Google Scholar
Caldeira, Gregory A. (1989) “Commentary on Senate Confirmation of Supreme Court Justices: The Roles of Organized and Unorganized Interests,” 77(3) Kentucky Law J. 531–8.Google Scholar
Carter, Stephen L. (1988) “The Confirmation Mess,” 101 Harvard Law Rev. 1185–201.CrossRefGoogle Scholar
Carter, Stephen L. (1994) The Confirmation Mess. New York: Basic Books.Google Scholar
Comiskey, Michael (1994) “The Usefulness of Senate Confirmation Hearings for Judicial Nominees: The Case of Ruth Bader Ginsburg,” 27 PS: Political Science and Politics 224–7.Google Scholar
Comiskey, Michael (2004). Seeking Justices: The Judging of Supreme Court Nominees. Lawrence: Univ. Press of Kansas.Google Scholar
Czarnezki, Jason J., Ford, William K., & Ringhand, Lori A. (2006) “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court,” 24 Constitutional Commentary 127–98.Google Scholar
Davis, Richard (2005) Electing Justice: Fixing the Supreme Court Nomination Process. New York: Oxford Univ. Press.Google Scholar
Eisgruber, Christopher L. (2007) The Next Justice: Repairing the Supreme Court Appointments Process. Princeton, NJ: Princeton Univ. Press.Google Scholar
Epstein, Lee, Lindstadt, Rene, Segal, Jeffrey A., & Westerland, Chad (2006) “The Changing Dynamics of Senate Voting on Supreme Court Nominees,” 68 J. of Politics 296–307.CrossRefGoogle Scholar
Epstein, Lee., Segal, Jeffrey A., & Westerland, Chad (2008) “The Increasing Importance of Ideology in the Nomination and Confirmation of Supreme Court Justices,” 56 Drake Law Rev. 609–35.Google Scholar
Fitzpatrick, Brian (2009) “Confirmation ‘Kabuki’ Does No Justice,” July 20 Politico http://politico.com/news//0709/25131.html (accessed June 20, 2010).Google Scholar
Fortas, Abe (1968) Testimony in Nominations of Abe Fortas and Homer Thornberry: Hearings before the Committee on the Judiciary, United States Senate. 90th Congress. Washington, DC: Government Printing Office.Google Scholar
Froomkin, Dan (2010) “Kagan Under Obligation to Open Up,” May 12 Huffington Post. Available online at http://www.huffingtonpost.com/2010/05/12/kagan-under-obligation-to_n_571733.html.Google Scholar
Ginsburg, Ruth Bader (1993) Testimony in Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States: Hearings Before the Committee on the Judiciary, United States Senate. 103rd Congress. Washington, DC: Government Printing Office.Google Scholar
Goldberg, Steven H. (2004) “Putting the Supreme Court Back in Place: Ideology Yes; Agenda No,” 17 Georgetown J. of Legal Ethics 175.Google Scholar
Guliuzza, Frank, Reagan, Daniel J., & Barrett, David M. (1994) “The Senate Judiciary Committee and Supreme Court Nominees: Measuring the Dynamics of Confirmation Criteria,” 56 J. of Politics 773–87.CrossRefGoogle Scholar
Harlan, John M. (1955) Testimony in Nomination of John M. Harlan to be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary. 84th Congress. Washington, DC: Government Printing Office.Google Scholar
Kagan, Elena (1995) “Review: Confirmation Messes, Old and New.” [Review of The Confirmation Mess by Stephen L. Carter], 62 Univ. of Chicago Law Rev. 919–42.Google Scholar
Krutz, Glen S., Fleisher, Richard, & Bond, Jon R. (1998) “From Abe Fortas to Zoe Baird: Why Some Presidential Nominations Fail in the Senate,” 92 American Political Science Rev. 871–81.CrossRefGoogle Scholar
Lemieux, Scott (2010) “Can Kagan Win Over Liberals,” May 12 The American Prospect. Available online at http://www.prospect.org/cs/articles?article=can_kagan_win_over_liberals. Accessed June 10, 2010.Google Scholar
Marshall, Thurgood (1967) Testimony in Nomination of Thurgood Marshall to be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary. 90th Congress. Washington, DC: Government Printing Office.Google Scholar
Martinek, Wendy L., Kemper, Mark, & Van Winkle, Steven R. (2002) “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 64 J. of Politics 337–61.CrossRefGoogle Scholar
O'Brien, David M. (1986) Storm Center: The Supreme Court in American Politics. New York: W.W. Norton.Google Scholar
O'Connor, Sandra Day (1981) Testimony in Hearings on the Nomination of Sandra Day O'Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States. 95th Congress. Washington, DC: Government Printing Office.Google Scholar
Poole, Keith T. (1998) “Recovering a Basic Space From a Set of Issue Scales,” 42 American J. of Political Science 954–93.CrossRefGoogle Scholar
Post, Robert, & Siegel, Riva (2006) “Questioning Justice: Law and Politics in Judicial Confirmation Hearings,” 115 Yale Law J. [The Pocket Part] 38–51.Google Scholar
Richards, Mark J., & Kritzer, Herbert M. (2002) “Jurisprudential Regimes in Supreme Court Decision Making,” 96 American Political Science Rev. 305–20.CrossRefGoogle Scholar
Ringhand, Lori A. (2008) “ ‘I'm Sorry, I Can't Answer That’: Positive Scholarship and the Supreme Court Confirmation Process,” 10 J. of Constitutional Law 2–29.Google Scholar
Ringhand, Lori A., & Collins, Paul M. (2010) “May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939–2009.” UGA Legal Studies Research Paper No. 10–12. Available at SSRN: http://ssrn.com/abstract=1630403.CrossRefGoogle Scholar
Rutkus, Denis Steven (2005) “Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate.” CRS Report for Congress. Washington, DC: Library of Congress.Google Scholar
Segal, Jeffrey A. (1987) “Senate Confirmation of Supreme Court Justices: Partisan and Institutional Politics,” 49 J. of Politics 998–1015.CrossRefGoogle Scholar
Scalia, Antonin (1986) Testimony in Hearings on the Nomination of Judge Antonin Scalia to be Associate Justice of the Supreme Court of the United States. 99th Congress. Washington, DC: Government Printing Office.Google Scholar
Sotomayor, Sonia (2009) Testimony at Confirmation Hearing on the Nomination of Hon. Sonia Sotomayer to be an Associate Justice of the Supreme Court of the United States. 111th Congress. Washington, DC: Government Printing Office.Google Scholar
Thornberry, Homer (1968) Testimony in Nominations of Abe Fortas and Homer Thornberry: Hearings Before the Committee of the Judiciary, United States Senate. 90th Congress. Washington, DC: Government Printing Office.Google Scholar
Thorpe, James A. (1969) “The Appearance of Supreme Court Nominees Before the Senate Judiciary Committee,” 18 J. of Public Law 371–84.Google Scholar
Tribe, Laurence (1985) God Save This Honorable Court. New York: Random House.Google Scholar
Tribe, Laurence (2008) “Alito's World,” November 7 Boston Globe, p. A13.Google Scholar
Turley, Jonathan (2009) “Retire the Ginsburg Rule,” July 16 USA Today, p. A9.Google Scholar
Watson, George, & Stookey, John (1988) “Supreme Court Confirmation Hearings: A View from the Senate,” 71 Judicature 186–96.Google Scholar
Williams, Margaret, & Baum, Lawrence (2006) “Supreme Court Nominees before the Senate Judiciary Committee,” 90 Judicature 73–80.Google Scholar
Yalof, David A. (2008) “Confirmation Obfuscation: Supreme Court Confirmation Politics in a Conservative Era,” in Sarat, Austin, ed., Studies in Law, Politics & Society, Vol. 44. London: Elsevier, 143–73.Google Scholar