An empirical analysis of the confirmation hearings of the justices of the Rehnquist natural Court.

• Author: Czarnezki, Jason J.
• Position: Symposium: The Rehnquist Court in Empirical and Statistical Retrospective

INTRODUCTION

The interpretive or judicial philosophies of Supreme Court Justices can be thought of as "packages of beliefs" about how to interpret the law, packages that go by names like formalism, originalism, and textualism. (1) Given the reasonable assumption that a judge's judicial philosophy could matter for how he or she will decide cases, the judicial philosophy of a nominee to the Supreme Court is of great interest to members of the Senate who vote on a nominee's confirmation. Figuring out a nominee's judicial philosophy is, consequently, one purpose of the confirmation hearings in the Senate, and Senators often claim to base their votes on their assessments of a nominee's judicial philosophy. During Justice Ginsburg's hearings, for example, Senator Joseph Biden, then chair of the Judiciary Committee, said the following: "A Senator has not only the right, but the duty to weigh carefully a nominee's judicial philosophy and, even more importantly, the consequences of that philosophy for the country." (2)

Many Supreme Court observers believe, however, that nominees reveal little useful information at their confirmation hearings. (3) While an occasional nominee (such as Robert Bork) will discuss his or her views in detail, most nominees are more guarded. (4) Nominees repeatedly refuse to answer specific questions, or to disclose information about how they would vote in particular cases. For example, Sandra Day O'Connor refused to state how she "might vote on a particular issue which may come up before the Court," and additionally declined to "endorse or criticize specific Suprem[e] Court decisions presenting issues which may well come before the Court again." (5) Ruth Bader Ginsburg said, "[a] judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process." (6) Antonin Scalia even resisted questions about whether Marbury v. Madison represents a settled principle of law. (7)

Obviously, what types of questions the Senators should ask--or the nominees should answer--is far from clear. Few, however, disapprove of questions about a nominee's judicial philosophy. Consider Senator Specter's comments during Kennedy's hearings:

On the subject of judicial philosophy, our introductory statements today have already negated to some extent the conclusion of harmony in these hearings. You have already heard a fair difference of views. And the first question I asked of you when you and I sat down to talk--and I thank you for the almost 3 hours we spent together in two extensive sessions. The first question I asked you was whether you thought that judicial philosophy was an appropriate subject for inquiry. You said you thought that it was, and we proceeded to talk. And I did not ask you about your views on any specific cases, and I would not in private or in public. But I do believe that there are broad parameters which are appropriate for discussion. (8) During these same hearings, Senator Leahy described this inquiry into judicial philosophy as the most important one at the hearings, saying that "[n]o issue is more central to a decision on the appointment of a Justice. (9) And while some Senators have expressed reservations about the scope of questions relating to judicial philosophy, (10) as Senator Specter's comment suggests, many others have emphasized the legitimacy of the topic. (11) In general, however, questions about interpretive methods such as the role of precedent or legislative history do not provoke explicit reactions of impropriety. (12) So while Senate confirmation hearings have numerous purposes, discovering a nominee's judicial philosophy is clearly one of them. (13) But this raises a basic question: Do the exchanges between the nominees and the Senators actually reveal anything useful about a nominee's judicial philosophy?

Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings statements on these issues, and evaluate whether the rankings correlate with the Justices' voting patterns or, in the case of legislative history, the content of their opinions. Given the focus of this Symposium--Empirical and Mathematical Inquiries of the Rehnquist Court--we focus on the Rehnquist Natural Court (the period from 1994 to 2005 when the same nine Justices served together). (14) This focus allows for consistent comparison of voting and decisionmaking patterns among the nine Justices.

Part II of this Article provides a description and historical account of the Rehnquist Natural Court and its Justices--Chief Justice Rehnquist and Justices Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. Part II also examines the various purposes other than revealing judicial philosophies that the confirmation hearings may serve. Part III describes our quantitative dataset, methodology and results, including our use of blind surveys to rank confirmation hearing statements. Since we know of no other study that attempts to measure confirmation hearing statements, we hope this symposium piece facilitates further discussion on how one might best evaluate confirmation hearing statements, and, thus, how we might improve upon our preliminary methodology (e.g., improving the survey instrument, including other areas of law, changing the population of the survey participants, or finding other ways besides surveys to operationalize confirmation hearing statements). Part IV explains and uses a different methodology. This Part compares confirmation hearing statements about the role of legislative history with the percentage of authored cases invoking legislative history. Part V discusses our conclusions and presents suggestions for additional research.

2. THE CONFIRMATION HEARINGS AND THE REHNQUIST NATURAL COURT

   The late Chief Justice William Rehnquist presided over the U.S. Supreme Court longer than any other Chief Justice in the twentieth century. (15) His Court at various times included Justices as different from each other as William Brennan, Thurgood Marshall, Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas. From 1994 to 2005, however, the same nine Justices-Chief Justice Rehnquist and Justices Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg and Breyer--sat together. This extraordinary period--eleven terms without any change of personnel--constituted the second longest natural court period in the history of the U.S. Supreme Court. (16)

   These nine Justices were nominated by five different presidents over the span of 23 years. (17) Control of the Senate over the course of these nominations also changed: Democrats controlled the Senate during seven of the nominations (Stevens, Thomas, Souter, Kennedy, Rehnquist (1971), Breyer, and Ginsburg), while Republicans had that honor during three (Scalia, O'Connor, and Rehnquist (1986)). (18) And of course, Robert Bork's failed confirmation hearings--widely considered a seminal event in the recent history of the confirmation process-occurred in 1987, after the Rehnquist, O'Connor and Scalia hearings, but before the hearings of the remaining Justices. (19)

   Not surprisingly given these varied political contexts, the content of the confirmation hearings for the nine Justices differed, both in style and substance. Justices O'Connor and Scalia were confirmed by unanimous votes in a Republican-controlled Senate. (20) Justice Rehnquist's elevation to Chief Justice and Justice Thomas's hearing, in contrast, were vigorously contested and each of these Justices won Senate approval by relatively narrow margins. (21) The nominations of Justices Ginsburg and Breyer, initiated by a Democratic president and confirmed by a Democratic Senate, were much less contentious. (22) The issue areas focused on during the confirmation hearings also varied a great deal. For example, questions about abortion were more prominent in the later hearings than in the earlier ones, while questions about the use of legislative intent in statutory interpretation increased dramatically after Justice Scalia's confirmation.

   Despite the rich research possibilities created by these hearings, there is little scholarship examining the substantive content of them. (23) Much of the existing literature uses empirical analysis to examine the role of the Senate in the confirmation process, but does not attempt to analyze and compare the nominees' substantive statements at their hearings, much less compare those statements themselves to the nominees' subsequent voting records once on the Court. The legal literature likewise has neglected this area. Although there is an abundance of law review articles discussing the confirmation process and the Senate's role in it, we are aware of none that attempt to connect confirmation hearing statements to subsequent judicial behavior. (24)

   This Article is a first step in remedying that oversight. We are aware, of course, that there is much going on at the Justices' confirmation hearings that does not involve sincere efforts by Senators to gain information about the sincere preferences of nominees. We assume, for example, that Senators are (among other things) satisfying interest groups by voicing their concerns, (25) signaling policy preferences to the Court as a whole, (26) and...