John Jay — Founding Father, co-author of the Federalist Papers and first Chief Justice of the Supreme Court — was received by the U.S. Senate for confirmation to his high-court post on Thursday, Sept. 24, 1789. He didn’t have to wait long for a decision. Jay was confirmed just two days later, that Saturday, in time to enjoy the rest of his weekend. The same was true of the rest of the first class of Supreme Court justices nominated that year. Some nominees have moved even faster. William Paterson, nominated in 1793, was received by the Senate and confirmed on the very same day. Even decades later, two of Abraham Lincoln’s nominees also got the same-day confirmation treatment.
But it’s unlikely that the same will be said in 2018 of President Trump’s most recent nominee, Brett Kavanaugh, whose Supreme Court confirmation hearing in front of the Senate Judiciary Committee is scheduled to begin with opening statements on Tuesday and questioning on Wednesday. In the intervening centuries of American history, these hearings have transformed from expeditious, closed-door processes into protracted, televised, high political theater.
Elected members of the legislative branch clash with would-be lifetime members of the judicial branch, ostensibly seeking brief answers to impossibly big and complex questions. What is the “role of the court” in broader American life? What is the nominee’s “judicial philosophy”? What do they expect they will do should they take a seat on the bench? An ageless Sen. Joe Biden ventured down this now-standard line of grandiloquent inquiry early in Robert Bork’s first confirmation hearing in 1987.
These anecdotal shifts in how the confirmation process unfolds — from quick and painless to lengthy and broad and dramatic — can also be seen in hard empirics. According to the painstakingly thorough data assembled by political scientist Paul Collins and legal scholar Lori Ringhand, which is current through the confirmation hearing of Elena Kagan in 2010, both the depth and scope of hearings have grown dramatically in even the past few decades. Their data covers 32 nominees, beginning with Felix Frankfurter in 1939, the first nominee subject to an open public hearing.1
Based on an analysis of transcripts, the sheer number of comments uttered by senators and the nominee during hearings has quickly grown by an order of magnitude, from a few hundred at most to a thousand at least. (That extra long bar was the Bork hearing, of course, which cracked 3,500 comments.)
And the expansion didn’t come just in the number of comments but also in their breadth. The number of unique issues addressed at the hearings — coded in this data, for example, as “civil rights,” “judicial philosophy,” “environment” and “defense” — has been steadily rising, from two or three to more than a dozen.
In the entire data set, “civil rights” and “judicial philosophy” — the big questions senators want answered — are far and away the most commonly raised substantive issues. Moreover, the percentage of comments made by majority-party senators has steadily declined over the decades, to about 50 percent — nominees can now expect a fairly equal-opportunity peppering.
“What began as a largely nondescript committee with only limited input into the fate of Supreme Court nominees developed into a highly visible institution that plays a starring role in the confirmation process,” Collins and Ringhand wrote in a 2016 paper.
In their view, this dramatic evolution of the hearings was catalyzed by two important changes in public access. The first change had to do with President Franklin Roosevelt’s nominee in 1937, Hugo Black. Black, a former senator himself, was confirmed just five days after his nomination. But before Black was seated, a reporter, who would later win the Pulitzer Prize for the story, revealed that Black held a lifetime membership in the Ku Klux Klan. In a break with tradition, Roosevelt had Black sworn in in a private ceremony at the White House, rather than in public. Public outrage followed, and the Judiciary Committee agreed to hold open public hearings, beginning in 1939. The first nominee in the new system, Frankfurter, was set to be “scrutinized thoroughly.”
The second change had to do with television. The hearings were first broadcast on TV in 1981, when President Ronald Reagan nominated Sandra Day O’Connor. The thing about senators is that they love to talk — especially on TV. They began to use the televised hearings to stake out ideological positions and to advertise themselves. They continue to do this today, of course.
And in response to this onslaught of highly public comments on a wide range of hot-button issues, nominees have nearly perfected the sport of confirmation-hearing dodgeball, ducking and weaving through the thousands of comments. The more anodyne the answers, it seems, the better for the nominee. Indeed, nominees routinely and explicitly refuse to comment on specific Supreme Court cases. And the answers they do provide, in their effort to be confirmed to the most powerful judicial post in the modern world for the rest of their life, tend to sound more like this:
“The proper role of the judiciary is one of interpreting and applying the law, not making it,” O’Connor said (on TV) in 1981.
“If I am confirmed, I will confront every case with an open mind,” Roberts said in 2005.
“I have enormous respect for the legislative process,” Elena Kagan said in 2010.
“Senator, first of all, a good judge starts with precedent and doesn’t reinvent the wheel,” Gorsuch said last year.
It’s hard to say exactly what all of this augurs for Kavanaugh this week and beyond. Some recent reporting by Axios, including interviews with potential Senate swing voters, suggests that his confirmation is all but assured and that Democrats “won’t be able to stop the confirmation of Brett Kavanaugh.” The blog Empirical SCOTUS writes that “The Democrats are in a precarious position in the latest battle for a seat on the Supreme Court.” What we can also almost certainly expect, however, is extensively televised high political theater, grandstanding questions from both parties, and an attempt to probe Kavanaugh’s views as they pertain to special counsel Robert Mueller’s investigation and a hypothetical presidential indictment.
We can also expect very, very boring answers.