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"?

Photograph of Sonia Sotomayor.
Supreme Court nominee Sonia Sotomayor 

It is a truth universally acknowledged that Judge Sonia Sotomayor's upcoming confirmation hearing might just become a "teachable moment" for America. We know this because Sen. Jeff Sessions said it on Tuesday, as did John Stanton and Mona Charen, as well as dozens of others in recent days. If the judicial confirmation process weren't such a filthy, dismal, politicized process, we're told, we could use the hot glare of the C-SPAN cameras to teach, educate, illuminate, and edify the good citizens of the United States about something important.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

But what exactly is it that we might teach? Even if we could change the confirmation process, is there really something to be learned from it? Walter Lippman once said that in political discourse, "the facts exceed our curiosity," and one suspects that this is nowhere truer than in a court confirmation battle.Is it possible we may not really want to discuss judicial philosophies? Are we content to engage in what Yale Law School's Stephen L. Carter has characterized as glorified gossip—exuberant whispering over the hedges that this nominee did that with her taxes and that nominee believes this about gay marriage? Or is there something profound to be learned here?

If we could use these proceedings to teach Americans something, what might we teach? Something about the nominee herself? Something about the Constitution? The role of the judiciary? I asked some experts—people who have either closely studied the confirmation process or participated in it—whether Sotomayor's confirmation could in fact become "teachable" and what we might do to get there. Here are their thoughts:

First off, not everyone agrees that there is much to be taught:

Benjamin Wittes (Brookings Institution fellow and author of Confirmation Wars,2007):

I hate the phrase "teachable moment"—and the concept it reflects as pertains to judicial confirmations. The purpose of the confirmation process is not to educate the public. That is why we have schools, universities, newspapers, and books. The confirmation process exists to provide a check on the executive branch's appointment power and for no other reason. The use of it for other purposes, including as a forum for a broad societal education and debate concerning the role of the courts and the judicial function, warps the process and almost never generates a useful discussion. We end up arguing over whether wise Latinas have better judgment than their white male colleagues (when was the last time the Supreme Court had to rule on that?), whether the D.C. Circuit has too many judges (who cares?), on the value of empathy and umpiring. And it all ends up in the same place: with the nominee at once obliged to and unable to answer substantive questions regarding how he or she will behave on the bench. "Teachable moment" may sound good (actually, it doesn't even sound good), but it's just another phrase for senatorial extortion.

All of this might be defensible if it actually shed light on who a justice would become, but it doesn't. When John Paul Stevens was nominated by a Republican president, a Democratic Senate confirmed him in 16 days. Byron White took only 12. I would venture to guess that the most grueling confirmation process for either of them would not have led to a more informed sense on the part of the Senate of what it was getting than it had when it voted. What we're teaching ourselves, in other words, is nothing—and at a very high price.

Stephen L. Carter (William Nelson Cromwell professor of law at Yale and author of The Confirmation Mess,1995):

I am always skeptical of the claim that a Supreme Court nomination provides a teachable moment. Passions tend to run too high—passions of narrow-issue constituencies on both sides of the aisle. I have nothing against narrow constituencies—knit together in a pluralist way, they create the shifting and unstable majorities a democracy needs. But their narrowness tends to focus their already strong energies, and, as a result, we get heat and flame but not much reason.

I would prefer, quite strongly, a confirmation process in which the nominee were not a participant. I really do not see another way to fix what is wrong. But, realistically, that is never going to happen. Too many people (including senators) are too invested in the exposure that the confirmation hearings provide. I do wish we would stop taking public opinion surveys on how people think the Constitution should be interpreted or what people think is the right result on any particular constitutional issue. If one believes in courts, one has to believe that the views of the public should not matter. This was the liberal position in American intellectual life for many years, and not only when a vacancy occurs on the court. For example, when the late Alexander Bickel wrote in the 1970s that the relationship between the Supreme Court and its public is "a conversation not a monologue," the liberal horror was palpable. He seemed to suggest that the court should be in dialogue with the people, rather than serving, as Anthony Lewis memorably described it, as this distant institution that now and then hurls down constitutional thunderbolts. Nowadays, opponents of a given nominee always seem to think that the views of the public should be "reflected" on the court. I am old-fashioned enough to believe the opposite.

Linda Greenhouse (Yale Law School senior fellow and former Supreme Court correspondent for the New York Times)is of the view that there is something to be learned from the confirmation process, but it's not about the nominee:

The confirmation process is less about the Supreme Court (let alone the nominee) than about the politics of the moment as reflected, however clumsily, in the questions the senators choose to ask. The transcript of a Supreme Court confirmation hearing is really a document of social and political history. For example, John Paul Stevens, nominated to the court in December 1975, nearly three years after the court's decision in Roe v. Wade, was the first post-Roe nominee, yet he was not asked a single question about abortion. That shows us that abortion was simply not a hot-button political issue in the mid-'70s—it was still waiting quietly in the wings for eventual capture by the right. So I don't look on confirmation hearings as meaningless theater but as windows into the American soul at a given moment in time.

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.

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.