Rejecting the Confirmation Process: Modern Standards For Investigating Nominees to the Supreme Court

Rejecting the Confirmation Process: Modern

Standards for Investigating Nominees to the

Supreme Court

NATHAN A. WILLIAMS*

ABSTRACT

Elimination of the filibuster for nominations to the Supreme Court by Senate

Majority Leader Mitch McConnell in 2017 upended the procedural calculus

used by modern Presidents. No longer did endogenous rules encourage the

selection of a nominee capable of attracting broad support in the upper house

as long as the president’s party controlled the majority in the Senate at the

same time. In mid-2018, this led to the nomination of Brett Kavanaugh, the first

appointment following the rule change, whose breadth of experience in public

life threatened discovery of unexplored vulnerabilities for Committee investiga-

tors. Ultimately, his nomination forced the most expansive investigation of any

nominee to the Supreme Court in history. His background file exceeded one mil-

lion pages of documents detailing his tenure in roles across the executive and

judicial branches. Yet his confirmation almost met defeat from an allegation

undisclosed to investigators until the eleventh hour.

In reality, Brett Kavanaugh’s nomination presented unique challenges to the

Judiciary Committee from the outset. Not only did his nomination attract early

opposition from senators in the minority—in part because his confirmation meant

shifting the ideological direction of the Supreme Court—but the Committee had

never before conducted a background investigation comparable in scope. Both

because of the depth required to review Kavanaugh’s voluminous record and in

spite of it, events that unfolded throughout the Judiciary Committee’s consideration

of his nomination underscored the importance of process in equal measure as it

exposed the need to standardize it. In short, the modern procedural landscape in

the Senate requires reforming the processes for considering nominations to the

Nation’s highest Court to protect the integrity of the federal judiciary.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

I. UNDERSTANDING THE PARTISAN BACKDROP . . . . . . . . . . . . . . . . . . 320

II. FRAMING THE BACKGROUND INVESTIGATION: THE REVIEW PERIOD 323

* J.D., Georgetown University Law Center, 2020; M.Sc., London School of Economics & Political

Science, 2017; B.A., University of Georgia, 2016. I thank Professor Richard Leon for his guidance in

choosing this Note topic. © 2021, Nathan A. Williams.

317

III. STANDARDIZING DOCUMENT REVIEW . . . . . . . . . . . . . . . . . . . . . . . 324

A. The Document Disagreement. . . . . . . . . . . . . . . . . . . . . . . . . 324

B. The Papers Chased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325

C. The “Political” Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . 328

IV. REFORMING THE CLOSED-DOOR SESSION . . . . . . . . . . . . . . . . . . . . 329

V. REFORMING THE PUBLIC HEARINGS . . . . . . . . . . . . . . . . . . . . . . . . 332

A. Ideology Belongs in the Political Branches . . . . . . . . . . . . . . 333

B. Restoring the Limited Purpose of Public Hearings . . . . . . . . . 335

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

INTRODUCTION

As the saying goes in Washington, the battle is already lost once debate is focused

on “process.” In the United States Senate Judiciary Committee where nominations

to the Supreme Court are often won or lost, however, process assumes outsized

importance. In mid-2018, the nomination of Judge Brett Kavanaugh exposed weak-

nesses in the Committee’s playbook for considering judicial nominees with political

associations and deep backgrounds in public service. The confirmation fight that

followed upended norms previously anchoring congressional investigations and

damaged public confidence in the independent judiciary.

James Madison argued that separation of powers provides “to those who

administer each department the necessary constitutional means and personal

motives to resist encroachments of the others.”

1

Much to the chagrin of the

Founders and the modern public, however, judicial confirmation battles in the

Senate Judiciary Committee are now akin to watered-down political trials.

Senators serve as either prosecutors or defense attorneys—their roles dictated by

partisan affiliation with or against the nominating president—and the nominee, as

a defendant, charged with committing an unsavory act or holding a belief seem-

ingly unbearable to the public conscience. Making matters worse, the competing

goals of “acquittal” or “conviction” depend on the other side’s failure to make a

convincing case.

The confirmation process for nominees to the Supreme Court has become a

dreaded spectacle, in part because the Legislature, the most democratically ac-

countable branch, has abdicated its constitutional role of debating and deciding

policy. The modern Congress—paralyzed by internal warfare—no longer does

much of the work assigned to it by the Constitution. As a result, the nation’s

1. THE FEDERALIST NO. 51 (James Madison).

318 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:317