The Senate Judiciary Committee

History and Overview of the Committee Role

Probably no aspect of the nomination and confirmation process is less well understood by the public than the role played by the Senate Judiciary Committee. Only in the past 70 years, since the nomination of John Harlan in 1955, has the process of public hearings before a fully constituted Judiciary Committee in which the nominee testifies become the norm. Even so, there was less ceremony and a greater casualness about nominations in this early modern period than we see today. We are not likely to see again hearings of a single day as we did with Whittaker (1957), Stewart (1959), White (1962), Fortas (1965), and Blackmun (1970). Nor are we likely to see the Chair of the Judiciary Committee open hearings with the invitation, "Is there anyone here who desires to testify either in favor or in opposition to this nominee?" as Senator Eastland did in Potter Stewart's hearings. Televised coverage of the hearings, systematically begun with the O'Connor nomination in 1981, has insured no lack of people wanting to testify for and against any nominee.

Myths about the Committee Process

There are a number of misperceptions about confirmation hearings. Among them are these:

1. The Committee consists of senators open-mindedly assessing the testimony of the nominee in order to reach a judgment about confirmation. Citizens unfamiliar with the process are sometimes surprised and disappointed to see that senators may already have made up their minds about whether they are going to support or oppose confirmation. Keep in mind, however, that the senators come to the hearings with substantial knowledge about the nominees and whether they seem suitable for the Court, at least in the eyes of that particular senator. Increasingly too, of course, senators are likely to view the nominee through their ideological lenses.
2. The Committee members have already made up their minds about how they will vote. The hearings are just a sham.The opposite mistake is to assume that all members have already decided how they will vote. No doubt some have, most often those who are members of the president's party, who typically follow the president's lead. Not since President Reagan's nomination of Robert Bork in 1987 has a Judiciary Committee member of the president's party voted against confirmation in the Committee vote. Consistent with the alignment of party and ideology, the opposition is now more likely to vote against confirmation. It is also the case, except for the Roberts nomination, that each nomination since has had a unique factor contributing to a more unified opposition. Alito replaced O'Connor, making the Court more conservative and ensuring another vote to overturn Roe v. Wade. Kavanaugh replaced Scalia, little difference there, but his nomination came as a result of Republican refusal to consider President Obama's nomination. Kavanaugh replaced Kennedy, the quintessential swing vote in 5-4 decisions. Barrett replaced Ginsburg, a seismic change creating a sixth member of the conservative bloc. Jackson replaced Breyer, a modest change in a more liberal direction. So, while in this century, more members of the opposition have likely already made up their mind, not all have. More on that later.
3. The hearings make no difference in the outcome of the confirmation vote of the full Senate.One need look back no further to the hearings on Brett Kavanaugh to see how important hearings can be. They play a very significant role in continuing to develop and refine the nomination discourse and in serving to guide the full Senate to its conclusion. And when the Senate is split so closely, two or three senators can hold the balance of power in determining the outcome.

Role Playing by Committee Senators

• The Partisan. Senators who have already decided in advance of the hearings to support or to oppose the nominee may choose to use the hearing to advocate in behalf of or in opposition to the nominee. The positive partisan is one who will ask questions designed to make the nominee look good. Often leading with statements that extol the virtues of the nominee, the senator will proceed to ask questions that allow the nominee to get out front on potentially controversial issues while fielding other questions in a style that emphasizes the inherent intelligence, thoughtfulness, fairness, and commitment of the nominee to his or her version of justice. In his introductory remarks at the hearing of Amy Coney Barrett, Senator Grassley avered, "Judge Barrett’s service reflects an exceptional intellect, paired with a deep commitment to the rule of law.... She’s received praise across the legal profession and ideological spectrum." His full statement is an encomium to Barrett's suitability for the Court.
  

  The negative partisan is likely to choose a more direct attack mode, asking challenging and confrontational questions designed to cause the public to question the suitability of the nominee to serve on the Court. Few opening statements, however, can match the negative partisan smackdown of Robert Bork by Senator Ted Kennedy in 1987. Click on the photo to play.

• The Validator.Some senators could best be described as leaning towards support or opposition regarding confirmation. What they seek in the hearings is confirmation of this predisposition. Consequently, validators tend to ask questions on those issues that stand in the way of a final decision. They also tend to ask questions that probe the mindset of the nominee and provide insight to what kind of justice this person will be. Conceivably, the nominee's responses might reveal unanticipated weaknesses or flaws that lead to a change of mind. In his opening statement to Elena Kagan, Senator Graham acknowledged that "most people would consider you qualified." For him, then, "I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it comes time to be a judge. That to me is your challenge." Graham was the only Republican committee member to vote in favor of confirmation. He was pretty certain he was going to do that, but it was up to Kagan to validate his opinion of her.
• The Advocate. Where confirmation is an acknowledged certainty, senators may decide to use their questioning time in the hearings to highlight certain issues and advocate positions on those issues. The target of that advocacy may be the nominee. A most obvious example of this was when Senator Biden told nominee O'Connor,
  

  You are a tremendous asset. You are a woman and the first one on the Court; don't let these folks, me included, run you out of being that. You are a woman; you do stand for something that this country needs very badly. We need spokespersons in positions of high authority. Don't lock yourself in, in this hearing or any other hearing, to do things that you are not proscribed from doing in the canons of ethics. It is your right, if it were your desire, to go out and campaign like the devil for the ERA. It is your right to go out and make speeches across the country about inequality for women, if you believed it. Don't wall yourself out. Your male brethren have not done it. Don't you do it.

  
  Senators with little left to do but accept the inevitable outcome often try to do what they can to influence the thinking of the nominee. It is also the case that some senators may advocate with a different target in mind. Senators who support the nominee nonetheless may use their questioning time to target their own constituents, fellow senators, or the general public by asking questions designed to make the senator look good and to advertise some particular issue championed by the senator. In that sense, we can also think of an Advertiser role as being conceptually distinct from the Advocate.
• The Evaluator. Finally, there is the true evaluator, uncertain how he or she will vote and who seeks to use the hearings to ask about and clarify those issues central to one's decision calculus. Epitomized by Senator Denton in the confirmation hearing of Sandra Day O'Connor, when he said "It is my earnest hope that your responses will be neither broad nor bland, because I will base my single vote on those responses." More recently, Senator Graham confessed to nominee Sonia Sotomayor, "I don't know what I'm going to do yet," That's the position of an evaluator.

Two excellent predictors of the voting behavior of members of the Senate are measures of their ideology and their partisanship. While it is overly simplistic to define either issues or people in terms of a liberal-conservative dichotomy, nonetheless, the scale of liberalism developed by the Americans for Democratic Action (ADA) does identify issues that can help distinguish those two ideologies and, consequently, whether senators are more clearly identified with either of those two ideologies or perhaps not with either. The ADA generally identifies 20 issues a term for their measure of liberalism. Thus, a score (%) of 100 would be one who voted in the liberal direction, as defined by the ADA, in all 20 instances. A score of 0 would be one voted in the opposite direction on all 20. One with a score of 30 would have voted for the liberal position on 6 of the 20. The scores listed below are for 2021. Care should be taken in interpreting these scores, since they are subject to the issues selected by the ADA. The votes selected for the index ranged from a 50-50 split on one to a 58-42 vote for the most lopsided one selected.

The partisanship score is a measure of how often senators side with one party or the other in those votes where a majority of Democrats opposes a majority of Republicans. Data are from Congressional Quarterly's CQ Magazine of February 14, 2017. The scores presented here are on 151 votes cast during the second session of the 114th Congress. The data are reconfigured to reflect the percentage of time a senator votes with the Democratic majority in order to be consistent with the direction of scores on the ADA liberalism measure. Consequently, a score of 90 indicates voting with the Democratic majority in 90% of the partisan votes. A score of 10 signifies voting with the Democrats only 10% of the time. It also signifies voting with the Republican majority 90% of the time (100-10=90). A score of 50 indicates voting with the Democrats 50% of time and Republicans 50% of the time.

These two sets of scores tend to run very close to each other and both suggest a considerable potential for ideological battles in judicial nominations, especially when the nominee is seen as possessing strong ideological leanings. However, the closeness seen here among scores within each party does not necessarily translate to common views regarding nominees.

- Back to Top -

Update by George Watson on February 3, 2023