Home > News > No, it’s not just theater. Here’s what to expect from the Kavanaugh hearings this week
200 views 10 min 0 Comment

No, it’s not just theater. Here’s what to expect from the Kavanaugh hearings this week

- September 4, 2018
President Trump speaks with Brett M. Kavanaugh and Kavanaugh’s family at the White House. (AP)

On Monday morning, the Senate Judiciary Committee will begin its hearings for Brett M. Kavanaugh, President Trump’s pick to replace Anthony M. Kennedy on the Supreme Court. Confirmation hearings for Supreme Court nominees typically get a bum rap as a “vapid and hollow charade,” “broken,” “a shell game” or a “Kabuki dance.” Senators grandstand, nominees say little of substance and the public learns nothing new.

But the picture is not so bleak. Confirmation hearings tell us more than you’d think about nominees and their core beliefs.

What can we expect from the Kavanaugh hearings?

How we did our research

In a 2014 book, my co-author Dion Farganis and I analyzed the transcripts of every confirmation hearing for Supreme Court nominees between 1955 and 2010, examining about 11,000 exchanges between senators and the nominees.

We coded each exchange — by which we essentially mean a question and an answer — to determine how forthcoming nominees have been. We categorized their responses as either fully forthcoming; giving a partial answer; not answering; or a “non-answer,” a response that stated facts about the law without revealing the nominee’s views.

Here is what we learned.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/29/it-took-conservatives-50-years-to-get-a-reliable-majority-on-the-supreme-court-here-are-3-reasons-why/”]It took conservatives 50 years to get a reliable majority on the Supreme Court. Here are three reasons why.[/interstitial_link]

1. Senators do scrutinize nominees’ records

Judging from the hearings for John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor and Elena Kagan, expect Kavanaugh to participate in about 500 exchanges with Judiciary Committee members. Nominees in the 1950s and 1960s such as Warren E. Burger, Charles E. Whittaker and Arthur J. Goldberg received fewer than 60 questions each. Byron R. White in 1962 had fewer than 10 exchanges with senators.

Why the increase in questions? Probably the biggest factor is that in 1981, the Senate decided to televise the confirmation hearings for Justice Sandra Day O’Connor. Before then, senators often did not ask questions or even show up for the hearings. Television changed that. Since then, only a handful of senators have refrained from asking questions.

2. The ‘Ginsburg Rule’ is a red herring

Named for Supreme Court Justice Ruth Bader Ginsburg, some observers point to a “Ginsburg Rule” — a claim that Ginsburg pioneered a practice of refusing to comment on legal issues that might come before the court.

We found that nominees answer about 70 percent of the questions senators ask them, overall, in a fully forthcoming manner. Moreover, Ginsburg’s level of forthcomingness was comparable to such earlier nominees as William H. Rehnquist in 1971 and Antonin Scalia in 1986.

To further examine this, we differentiated between questions in two ways. We first accounted for the question’s issue topic (such as civil rights and liberties, judicial philosophy, or past court rulings) and second, whether the question tried to gauge the nominee’s viewpoint or was seeking facts.

We found that if nominees are asked factual questions or questions on such topics as general judicial philosophy, nominees are more forthcoming. But when asked questions that try to ascertain views, or when asked questions about civil rights and liberties, nominees have become less forthcoming over the past 30 years. Kavanaugh is likely to answer most questions — but will refuse to answer some important ones.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2018/07/02/will-the-supreme-court-really-lurch-rightward-with-trumps-next-appointment”]Will the Supreme Court really lurch rightward with Trump’s next appointment?[/interstitial_link]

We also documented the reasons nominees gave when they were not fully forthcoming. Nominees were giving the “might come before the court” reason long before Ginsburg, although it has become more common since O’Connor’s hearings. Ironically, this may be related to a memo that Roberts — then assistant to the U.S. attorney general — sent O’Connor saying that it wasn’t appropriate for nominees to comment on real cases.

3. Executive power will be the elephant in the hearing room

Senators will ask Kavanaugh a wide range of questions. Some will be about hot-button issues such as abortion and gun rights. Others will be about more mundane topics such as his background and qualifications.

Kavanaugh could well dodge questions on executive power, a topic that is especially sensitive right now. That’s because of an interesting tangle of circumstances. On many minds, of course, is the ongoing special counsel investigation of the Trump campaign. But Kavanaugh’s past writings, based on his experience as part of Ken Starr’s team investigating President Bill Clinton, suggested that presidents should not be distracted by lawsuits and investigations. Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, contends that Kavanaugh “doesn’t believe a sitting president should be investigated or prosecuted — in other words, is above the law.”

Further, Kavanaugh had enormous influence as George W. Bush’s staff secretary, where he may have formed opinions on executive power. The White House has claimed executive privilege to prevent the release of more than 100,000 pages of records from Kavanaugh’s time at the White House, which Democrats think could reveal his views. Finally, a report indicates that Kavanaugh does not plan to recuse himself from any case regarding President Trump’s executive powers, as Democrats have demanded.

When Kavanaugh does not answer a key question on executive power, what reason is he likely to give? Nominees have been increasingly likely to respond that they cannot answer questions because the issue is likely to come before the court.

This will not satisfy some senators, even though such demurrals have become the norm. Democratic and Republican senators in the past, including Sens. Charles E. Schumer (D-N.Y.) in 2005 and John Kyl (R-Ariz.) in 2010, have explained their votes against a Supreme Court nominee — Roberts and Kagan, respectively — precisely because of those refusals to answer.

But according to our research, since the advent of televised hearings, nominee candor does not directly influence senators’ committee votes; rather, senators’ party affiliations do. That’s the reverse of the pattern before 1981. This suggests that, regardless of Kavanaugh’s answers, partisan forces are likely to shape the confirmation vote.

4. The end of the Supreme Court filibuster may change the hearing dynamics

In 2017, Senate Republicans changed the chamber’s rules so that the minority party could not filibuster to block a vote on Supreme Court nominees. Neil M. Gorsuch’s hearings took place right before the GOP banned such filibusters — making Kavanaugh’s hearings the first during which a prospective justice needs only a bare Senate majority to be confirmed. With Republicans in control of the Senate, that means Kavanaugh will almost certainly be confirmed. He may, therefore, think he can be less forthcoming that earlier nominees.

No doubt partisan fighting and tense exchanges will be on full display this week. The public will learn a lot about the nominee, but not everything we might want to know. But partisan disputes about judicial nominees are as old as the nation. At a minimum, we can hope that these confirmation hearings will reveal and spur debate on core beliefs about the Constitution.

Justin Wedeking is a professor of political science at the University of Kentucky and co-author of “Supreme Court Confirmation Hearings in the U.S. Senate.”