Randy Barnett and I have a new piece in National Affairs, based on our contribution to the Chicago Law Review Online, titled Restoring the Lost Confirmation. We discuss how originalism can salvage the currently-meaningless confirmation hearing. Here is the introduction:
There is a silver lining to the storm clouds brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Chief Judge Merrick Garland to the Supreme Court this spring, President Obama faulted Democrats and Republicans alike for their prior positions on judges. “There’s been politics involved in nominations in the past” on both sides, Obama observed. He’s right. Over the past three decades, presidents and senators from both parties have ratcheted up the tension over Supreme Court nominees. And the lynchpin of that conflict is what has become an utterly meaningless ritual: the confirmation hearing. But not for the reasons you may think.
The conventional wisdom maintains that, in their current form, judicial confirmation hearings serve no meaningful purpose. This is because nominees, who are rationally self-interested in being confirmed, refuse to answer any questions that could jeopardize their prospects. Instead, the theory goes, when asked a controversial question, the nominee equivocates and obfuscates. Prospective judges nominated by presidents of both parties are trained through rigorous “murder boards” to provide answers that are designed to shed as little light as possible on how they will behave if confirmed.
The end result was accurately described by one legal scholar two decades ago: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” That scholar was Elena Kagan. Perhaps because of her astute awareness of this phenomenon, and to ensure her own confirmation, the former Harvard Law School dean and solicitor general did what all nominees do: deftly navigated between the straits of Scylla’s vacuity and Charybdis’s farce.
Before we proceed further, we should disclose that we are originalists, and we would like to see more originalist justices on the Court. We believe that the current vacuity of the confirmation process enables “living constitutionalists” to slip through the net and make it to the Court unscathed. Our objective is, therefore, not neutral between constitutional approaches. But we also believe that a focus on clauses rather than cases during confirmation hearings would improve the quality and character of hearings for everyone by moving away from vapid questions and farcical answers. Living constitutionalists would be perfectly free to explain and defend their approach to the senators.
Critically, through this refined focus, the senators — and ultimately the people as sovereigns — can engage in a public dialectic with the nominees to probe their deepest knowledge of the portions of the Constitution that do not change with time. Our proposed approach seeks to restore the lost confirmation, where the focus on the text and history of our “republican” Constitution — the truly immutable characteristics of our fundamental law — are paramount and timeless. And if we are right that the original meaning of the Constitution does produce determinate answers to constitutional controversies, then our approach will offer useful insights into how a nominee will vote once no longer constrained by precedents.
Our approach may be easier than it seems, because only 1 or 2 Senators–perhaps those who are former SCOTUS clerks–would have to pose the sorts of originalist inquiries need to change the tone of the proceedings.
But we don’t need a cadre of originalist senators. The beauty of this approach is that no rules need be changed; no bipartisan agreement need be reached; and the Republicans on the Senate Judiciary Committee need not even all be of the same mind. For this approach to restore the lost confirmation hearing, we need only a senator or two to focus their limited time on originalism. And we have full confidence that the Judiciary Committee counsels on both sides are quite capable of generating useful questions for the nominees.
Imagine if a handful of senators — perhaps Ted Cruz of Texas or Mike Lee of Utah, both former Supreme Court clerks — grilled Chief Judge Garland on the questions we asked above. Garland — whose two-decade record on the bench shows absolutely no affinity for originalism — may prove utterly incapable of answering their questions, beyond perfunctory platitudes. Whenever Garland reverts to discussing case law, the senator might interrupt and say, “I am not interested in precedents. Once confirmed you can change all that. I want you to discuss matters you cannot change, like the Federalist and Anti-Federalist Papers, Blackstone’s Commentaries, the records of the Constitutional Convention, records of the ratification of the 14th Amendment, and other contemporaneous sources.” Any effort to shift back to citing cases should be swiftly halted. With such a rough going, the tenor of the debate would immediately change. These questions are especially critical given that the next nominee will fill the seat of Antonin Scalia, who ought to be canonized as the patron saint of originalism.
Unlike the “gotcha” questions that have marked recent hearings, these originalist questions are entirely fair game. Even the most qualified candidate could be embarrassed. His lack of preparation might reveal to the American people something meaningful about how he would go about making decisions once no longer controlled by stare decisis. The inquiring senators would make the seminal point that the Constitution is not just what five justices say it is — the Supreme Court does not have a monopoly on interpreting the document. If a nominee replies that these historical sources are not relevant, or not worthy of study (as federal court of appeals Judge Richard Posner recently asserted), then that is an entirely justifiable ground for voting against his confirmation.