Legal scholarship highlight: Analyzing the candor of Supreme Court nominees

In the past two decades, criticism of Supreme Court confirmation hearings has intensified considerably. According to the prevailing wisdom, today’s nominees are more reluctant to answer questions during their Senate testimony, and the hearings have suffered as a result. Recent proceedings have been described as “a vapid and hollow charade,” an “exercise in obfuscation,”and even a carefully choreographed “kabuki” dance. In short, the message from critics is clear: Nominees now say “nothing of value” during their testimony, and the hearings are no longer what they used to be.

This trend toward nominee evasiveness allegedly began after Robert Bork’s 1987 confirmation hearings. According to that well-known account, Bork’s lengthy and candid answers doomed his nomination, and subsequent nominees, seeking to avoid a similar fate, have become much more cagey and unresponsive in their testimony. Along these lines, the approach taken by Ruth Bader Ginsburg during her 1993 confirmation proceedings is now generally regarded as paradigmatic. By declining to discuss any issue that might come before the Court, Ginsburg is thought to have charted a new course for post-Bork nominees. Indeed, the so-called “Ginsburg Rule” – according to which nominees invoke their right not to answer questions about potentially unsettled legal debates – has become shorthand for the idea that contemporary nominees duck and dodge difficult questions in a way that their predecessors did not.

But how accurate is this widely accepted version of events? Have nominees really become less forthcoming in recent years? Previous studies of Supreme Court confirmation hearings have focused on changes in the topics of the questions that senators ask.  But to date, there has been no systematic analysis of how nominees respond to those questions. Therefore, while it is possible that things have gone rapidly downhill since Bork, as the conventional wisdom suggests, the evidence supporting this view has been largely anecdotal.

In our article, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan, we seek to overcome this gap in our understanding of the Supreme Court confirmation process. To that end, we present the results of a content analysis of every Supreme Court confirmation hearing transcript since 1955, the year that the proceedings became a regular part of the confirmation process. For each hearing, we coded all of the exchanges between a senator and the nominee, recording things such as the type of question asked, the degree to which the answer was forthcoming, and the reasons nominees gave for not answering more fully. Using this original dataset – nearly 11,000 exchanges in total – we then tested a series of hypotheses about nominee responsiveness in the face of Senate questioning.

Our results show that the conventional wisdom about Supreme Court confirmation hearings needs to be rethought. First, we discovered that there has not been a dramatic decline in nominee responsiveness since the 1980s. Recent nominees, such as Samuel Alito and Elena Kagan, were just as forthcoming as many earlier nominees, and even more forthcoming than others. Second, the overall rate of responsiveness for all nominees, including those who came after Bork, is much better than generally assumed. Nominees generally answer between sixty and seventy percent of their questions in a fully forthcoming manner. By contrast, only about twenty percent of the questions get a qualified response, and outright refusal to answer rarely tops ten percent. Therefore, whether we are talking about hearings from the 1960s or the 1990s, the notion that nominees evade more questions than they answer is unfounded. Lastly, we find that there have been subtle but important changes in the types of questions that are being asked, the topics of those questions, and in the ways in which nominees answer them, and that these shifts have helped to fuel the perception that responsiveness has declined where in fact it has not.

Taken together, these findings suggest to us that Supreme Court confirmation hearings have been largely misunderstood and mischaracterized in recent years, and that whatever one may want to say about recent nominees, one should also say about many of their predecessors as well. To be sure, the hearings have changed over the past few decades: they are longer, there are more questions, and they are more partisan and ideological. But on balance, they are neither more “vapid” nor more “hollow” than they have always been – a finding that we hope will generate a lively debate about the role that these hearings play in the confirmation process.

Dion Farganis is Assistant Professor of Political Science at Elon University; Justin Wedeking is Assistant Professor of Political Science at the University of Kentucky.