Can confirmation hearings really be transformed into "teachable moments"?

The law, lawyers, and the court.
June 4 2009 5:18 PM

Teach to America

Can judicial confirmation hearings really be transformed into "teachable moments"?

(Continued from Page 1)

There are also those who believe that a lot can be taught through the confirmation process:

Lee Epstein (Henry Wade Rogers professor at Northwestern University School of Law and co-author of Advice and Consent (2005):

Teachable moments? Well, sure. How great is it that people who never think about the court are talking and opining about it? I walked into a local breakfast joint a few days ago and overheard conversations about Sotomayor and the court at four or five different tables. When does that ever happen except during appointments? And we'll hear more once the proceedings start. For the Roberts and Alito hearings, I did some call-in radio shows. While many of the questions were what you would expect—abortion, affirmative action, and so on—more than a few were about the commerce clause, the separation of powers, etc. Again, when do you ever hear people ask about the commerce clause outside of Con Law I?

The Sotomayor nomination seems an especially interesting—and, I would hope, teachable—moment because of the dialogue over the role of life experiences in judging (from both empirical and normative standpoints).

Christopher L. Eisgruber (provost of Princeton University and author of The Next Justice,2007):

Yes, the hearings could be a teachable moment—in fact, the Bork hearings were a teachable moment. President Reagan chose Judge Bork over more moderate conservatives because he was a rigorously pure ideological conservative. Bork explained to the Senate what it meant to interpret the Constitution according to a conservative judicial philosophy. Senators expressed their reservations intelligently, and, eventually, they rejected Bork and demanded a more moderate conservative—whom they eventually got, in the person of Anthony Kennedy. Yes, there were hyperbolic and unfair accusations made against Bork, and, yes, reasonable people can disagree about whether the hearings reached the right outcome. But anybody who paid close attention learned a lot about constitutional interpretation.

Unfortunately, subsequent nominees have feared that, if they say anything illuminating about their jurisprudence, they will suffer the same fate Bork did. As a result, nominees have insisted that their values will not affect their jurisprudence. Clarence Thomas said that he would strip down like a runner, leaving his values behind when he decided cases. John Roberts declared that he would be as anonymous as a baseball umpire, simply calling balls and strikes. Senators have cooperated with this strategy by agreeing that judges have no business bringing their values to bear when interpreting the law. That's poppycock. Stephen Breyer and John Roberts are both superb lawyers, but they disagree predictably along liberal/conservative lines when interpreting the Constitution. Why? Because there is no way to interpret provisions like the Equal Protection Clause in hard cases without bringing your values to bear on the case. Judicial values are complicated; they involve institutional considerations, not just the policy preferences of legislators. But unless nominees and senators are willing to admit that values do matter to judging, the hearings are not going to educate anyone, because they are based on a palpable falsehood.

Would it be possible for nominees to be more honest? I think so. Bork's problem was not his honesty but rather that his views were genuinely extreme by comparison with, say, Anthony Kennedy or Sandra Day O'Connor (and the Senate was in the hands of the Democratic Party). But so long as opposition senators insist that no nominee should ever bring her values to bear on a case, nominees will have no incentive to be candid about their views. And the hearings are unlikely to teach anything of value about the Constitution.

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Ed Whelan (president of the Ethics and Public Policy Center and contributor to National Review Online's Bench Memos):

As I have written before, there aren't any process fixes. The confirmation wars reflect a deeper divide over the proper role of the courts in our system. There are different ways of presenting that divide, but the way that I conceive of it is between proponents of originalism and judicial restraint, on the one hand, and supporters of  "living constitutionalism" and liberal judicial activism, on the other. The first group generally believes that judges are constrained in how they may interpret the Constitution and that they can't override democratic enactments in the absence of a clear constitutional violation. The second group sees no meaningful constraints on interpretive methodologies and looks to the Supreme Court to pave the way to a progressive future by inventing a continuing series of new rights.

For various reasons, many Republican senators have acquiesced in the Supreme Court's power grabs. They need to understand the broader debate over the role of the courts and to inform that debate through their statements and questions at the confirmation hearing. The confirmation process is an important opportunity to make American citizens more aware of the competing positions in the debate and more alert to why that debate is so important.

Whether or not there is a teachable moment to be found in the confirmation process, and even if it might be fixed to encourage more of them, it's clear that Americans are watching. They are forming opinions that shape the way they think about individual justices, the law, and the court itself for decades. It may not be a teachable moment, but perhaps it's worth thinking hard about what America is learning.

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