an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What are Supreme Court confirmation hearings good for?
Judge Sonia Sotomayor's hearings begin today, with opening statements by Senators and a brief statement by the candidate. The real questioning begins tomorrow.
What purposes, exactly do these hearings serve? The candidates are instructed to say nothing controversial or reveal their actual views. Robert Bork tried to tell the Senators what he actually thought, and look where it got him. Scandals may pop up unexpectedly, as in the case of Clarence Thomas, who ultimately turned it to his advantage and won confirmation. But otherwise, the hearings tell us little about what the candidates would actually do once in office.
So what is the point of these hearings, other than an opportunity for dredging up potential scandals and giving the press and Washington, D.C. something to be distracted about?
The short answer is that the hearings are often more about the Senate--as representatives of various strands of public opinion--than the candidate. They are opportunities for Senators to make claims about what they believe are the mainstream understandings of the U.S. Constitution. The candidate cannot say what he or she thinks the law should be, or how they would decide particular cases, but the Senators can and do make claims along these lines. In the process, they create what I have previously called the "constitutional catechism": the set of assumptions, beliefs, and positions that every candidate who claims to be in the mainstream of American constitutional thought must share. (For example, Griswold v. Connecticut, which protected the right to purchase contraceptives, was rightly decided; Brown v. Board of Education was rightly decided; and sex equality is required by the Constitution.) A candidate who cannot bring himself to agree with the catechism (as Robert Bork famously could not) will be in trouble, but most candidates find ways to hedge and talk around the subject artfully. (In this task John Roberts was a master).
But what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices. This does not force Justices to do anything in later cases; but it does set forth the boundaries of what is "on the wall" from the standpoint of constitutional assumptions. In this way the Senate, which is always playing to public opinion and various constituencies within the public, helps to construct the boundaries of the reasonable and the mainstream in constitutional law.
Is this a good thing or a bad thing? Many people are frustrated by the senators' tendencies to showboat and posture. On the other hand, senators are keenly attuned to public opinion. If confirmation hearings succeed in focusing the public on the Constitution and shape constitutional common sense in line with the mainstream of public opinion, they help serve a important goal. They help, in limited ways, to signal to the judiciary-- and not just to the candidate-- how the public feels about the Constitution and the role of the judiciary.
Why would this happen? Senators work hard at making speeches that set out their views about the Constitution in part because the hope to appeal to various constituencies. Liberals appeal to liberals, and conservatives to conservatives, but, equally important, both try to appeal to moderates and independents. By making speeches and asking questions, they not only seek to encapsulate and respond to various segments of public opinion, but also to present themselves as defenders of a mainstream vision of the Constitution.
In a constitutional system like ours, the judiciary must always be responsive to the public in the long run if it is to maintain its legitimacy. The public expects judges to follow and apply the law, but it also expects that judges will be responsive to long-term changes in public attitudes and public values. Confirmation hearings, if done properly, can play a modest but useful role in this process. Perhaps we could do without public confirmation hearings-- we did not always have them--and perhaps these days they are more trouble than they are worth; but it's nevertheless valuable to understand the limited contribution they can make. So here's what to focus on in the Sotomayor hearings: Although the Senators may be occasionally tiresome and self-aggrandizing, nevertheless pay attention to what positions they assume all mainstream judges should agree to. And listen closely to how the candidate and the Senators construct a notion of what is a reasonable position for a judge to take and a reasonable way for a judge to go about his or her job. These are the signals that the various constituencies within the public send to the entire federal judiciary (and not just the candidate), and it may be the most important work of modern Senate confirmation hearings.