In light of my post about aspiring judges trimming their sails–out of fear that any adverse statements may sabotage their candidacy– I am reminded of a book review written in 1996, in response to a book by Steven Carter about the Supreme Court nomination process, titled The Confirmation Mess.
This excerpt highlights that vapid confirmation hearings where nothing is discussed, gives a benefit to nominees who lack paper trails. In contrast, in substantive hearings where the issues are engaged, the nominee without a paper trail (perhaps a member of the Little Supremes) would have no advantage over the candidate with a prolific record.
Further, a commitment to address substantive issues need not especially disadvantage scholars and others who have left a “paper trail,” as the received wisdom intones and Carter accepts (p 38). The conventional view is that substantive inquiry promotes substantive ciphers; hence the hearings on Robert Bork led to the nomina- tion of David Souter. But this occurs only because the cipher is allowed to remain so–only because substantive questioning is reserved for nominees who somehow have “opened the door” to it by once having committed a thought to paper. If questioning on substantive positions ever were to become the norm, the nominee lacking a publication record would have no automatic advantage over a highly prolific author. The success of a nomina- tion in each case would depend on the nominee’s views, whether or not previously expressed in a law review or federal reporter. Indeed, a confirmation process devoted to substantive inquiry might favor nominees with a pa- per trail, all else being equal. If there was any reason for the Senate to have permitted the testimonial demurrals of Justices Breyer and Ginsburg, it was that their views already were widely known, in large part through schol- arship and reported opinions–and that those views were widely perceived as falling within the appropriate range. When this is so, extended questioning on legal issues may seem hardly worth the time and effort. [FN30] More available writing thus might lead to less required testimony in a confirmation process committed to sub- stantive inquiry.
The author of this review, of course, is Elena Kagan. Confirmation Messes 62 U. Chi. L. Rev. 919 (1995).