Can Supreme Court Nominations Be Less Contentious?
Science could rescue the nomination process with better data.
Posted Apr 06, 2017
The Supreme Court and the Senate Judiciary Committee are much in the news right now, as Senate partisans engage in acrimonious battle over the confirmation to fill a Court vacancy that has been open for more than a year. The confirmation process has not always been the rancorous spectacle that we see today, and the very drama we see playing out now offers an ideal opportunity to step back and reflect a bit on the Court from a perspective outside of the bitterness and harsh headlines.
Lawrence Wrightsman, a past-president of the Society for the Psychological Study of Social Issues, and a well-respected scholar in the field of psychology and law, has written a book (Ten Little-Known Facts About the Supreme Court, 2015) that provides some important insights on the nature of the court, its goals, its everyday functioning, and the behavior of its justices.
This matters because we have ample evidence that American citizens don’t know much about the Supreme Court and its justices.
- In 2011 Newsweek magazine asked 100 American citizens to answer questions from the country’s official citizenship test. Only 37% knew how many were justices are on the Supreme Court.
- A survey in 2010 by the Pew Research Center found that twice as many Americans knew the host country of that year’s World Cup (South Africa) than knew the name of the Chief Justice.
- In fact, Wrightsman notes, Judge Judy is more easily recognized than Justice Ruth Bader Ginsburg, and two thirds of Americans cannot name any justices on the Court.
In spite of that, Supreme Court nominations and confirmation battles like the one we’re witnessing now capture headlines and engage the public imagination. This process is one of Wrightsman’s subjects. According to Wrightsman:
One hundred and twelve justices have been seated on the Court since 1789. However, it was not until the 1920’s that floor debates over Supreme Court appointments began to be held in public instead of in closed session. The first nominee to appear for questioning before the Senate Judiciary Committee was Harlan Fiske Stone, who did so – at his own request -- in 1925. Over the next few decades, some nominees testified and some didn’t. Several, including Sherman Minton and Felix Frankfurter, at least initially declined to provide such testimony on the grounds that it would be antithetical to the goals for an independent judiciary.
The now-routine examination of Supreme Court nominees by the Senate Judiciary Committee was established after the Brown v Board of Education decision in 1954, as an attempt by outraged states’ rights advocates to ensure that their autonomy would not be further “usurped” by the Court. To that, add ever increasing ideological conformity within both political parties, polarization of ideology between the two parties, the relatively new phenomenon of issuing promises about Court appointment priorities by presidential campaigns, the frequency of ideologically driven 5-to-4 Court votes, and the grievances each party brings to the process as a result of the highly publicized Judiciary Committee treatments of Thurgood Marshall, Robert Bork, Clarence Thomas, and Merrick Garland, and we have the mess that exists today.
Is there a more productive way to move forward? For scientists like Wrightsman and others who value data-driven approaches to the issues that impact us all, there may be a way to de-politicize the process while still ensuring that the Senate fulfill the “advise and consent” responsibility with which it is charged by the Constitution. Rather than relying on the standard cat-and-mouse questioning now employed – which is largely uninformative because candidates are skilled at offering only highly evasive responses, Wrightsman cites straightforward data collection that Choi and Gulati (2004) suggest would be more useful and substantive.
These data include how often the nominee’s opinions have been cited in later opinions and whether their opinions have been independent of political ideology. Wrightsman asks, in addition, for data on whether the nominee’s opinions have been mostly broad or narrow, and how often they have been reversed by a higher court. Wrightsman concludes that with this approach, the confirmation hearings could serve the purpose for the Senators that oral arguments do for the the justices: providing unfiltered data to inform the Senate and the public of the validity of the nominee’s qualifications.
Choi S., & Gulati, M. (2004). A tournament of judges? California Law Review, 92, 299-321.