Can the Senate Examine the Constitutional Philosophies of Supreme Court Nominees?

Abstract

In the last 40 years, universal recognition of the Supreme Court's important policy-making role, the prevalence of divided government, and heightened conflict over value-laden issues such as abortion and school prayer have led to ever more elaborate Senate review of Supreme Court nominations (Freund 1988; Ross 1987, 116-23). Senate hearings into nominees' views on constitutional issues comprise the most visible element in the expanded confirmation process. Yet most recent nominees have won Senate approval while revealing little of their legal or political philosophies. As Powe (1976, 893) has concluded, “Senate questioning [of nominees] has proved astonishingly ineffective in eliciting the desired information.” The ability of nominees to hide their beliefs on vital constitutional questions raises serious doubts about the Senate's ability to give informed consent to presidents' Supreme Court nominations. This article examines confirmation hearings on recent, pre-Clinton Supreme Court nominees to answer two questions. First, given the recognized importance of Supreme Court appointments and the correspondingly systematic scrutiny of nominees, how do nominees get away with revealing so little of their views on vital constitutional issues? Second, given the answers to the first question, can the hearings be reformed so that senators may air a nominee's views more thoroughly and give—or withhold—truly informed consent to these nominations?

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