In today’s New York Times, Yale law professor Stephen L. Carter proposes that confirmation hearings on Supreme Court nominations dispense with taking testimony from the nominees themselves. Until a little over 50 years ago, he notes, we just didn’t do this routine interrogation of prospective justices (though there were a couple of earlier instances, as he acknowledges). Carter should be credited with consistency; he made most of these arguments four years ago when Justice Sandra Day O’Connor announced her departure. Nothing wrong with recycling old arguments, of course, if they’re any good. But Carter’s aren’t.
He attempts, now as then, to tar the modern practice with the taint of a racist origin by noting it really began with the “effort by determined segregationists to derail Brown v. Board of Education” in 1955. This is a decidedly partial history. Since the Brown opinion by Chief Justice Earl Warren was notorious for its cavalier attitude toward normally accepted categories of constitutional interpretation, it prompted searching analyses in every quarter where such things matter, including among liberal legal scholars. Even many who applauded the outcome in Brown found it deeply unsatisfactory as an exercise in judicial review. A cottage industry sprang up overnight in how to justify Brown more competently than the Warren Court did, and it continues to churn out new product even today. Is it any wonder that the political branches of government began to take a deeper interest in the work of the Supreme Court than hitherto? Carter blames it all on “Southern Democrats who in those days still largely ran the Senate,” but the practice of hearing nominees testify would not have continued if there were not a great many responsible people who value it.
Carter’s more serious argument is that the whole exercise is a waste of time:
Senators ask about the nominee’s views on a variety of cases, and the nominee respectfully declines to answer. Then the senators ask about judicial philosophy, and the nominee dances a bit, murmurs a few plain-vanilla reassurances, then clams up. We get no new information.
This is almost but not entirely true. But suppose it were wholly accurate. Carter’s solution is even worse, since he wants us to stop even attempting to get any information at all from a face-to-face encounter between senators and a nominee for the Court. Nothing else, he asserts, is consistent with the principle of judicial independence.
Carter’s recent arguments extend the view he offered in his 1994 book The Confirmation Mess. Here are a few choice passages from a review of that book that I found very persuasive:
If substantive inquiry is off-limits, on what basis will the President and Senate exercise their respective roles in the appointments process? Will this limited basis prove sufficient to evaluate and determine whether a nominee (or would-be nominee) should sit on the Court? Will an inquiry conducted on this basis appropriately educate and engage the public as to the Court’s decisions? . . .
[T]he bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country, and, correlatively, the effect the nominee will have on the Court’s decisions. . . .
The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion, first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues. . . . [This requires an] insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues–involving privacy rights, free speech, race and gender discrimination, and so forth–that the Court regularly faces. . . .
As for “judicial independence,” Carter speaks as though the term were self-defining–and as though it meant that in appointing judges to a court, the President and Senate must refrain from considering what they will do once they arrive there. But this would be an odd kind of decision to leave in the hands of elected officials: far better, if such subjects were forbidden, to allow judges to name their own successors–or to cede the appointment power to some ABA committee. In fact, the placement of this decision in the political branches says something about its nature–says something, in particular, about its connection to the real-world consequences of judicial behavior. Indeed, contrary to Carter’s view, the President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument. The value of judicial independence does not command otherwise, however much Carter tries to convert this concept into a thought-suppressing mantra.
Who wrote this devastating takedown of Stephen Carter’s arguments, now reappearing yet again in the Times? Why, it was now-Solicitor General Elena Kagan, reviewing Carter’s book in the University of Chicago Law Review in 1995. Senators should take Kagan’s advice, not Carter’s, when they prepare for the hearings on President Obama’s nominee to succeed Justice Souter.
Oh, one more thing. Carter recycles a (putative) Lincoln quotation on appointing Supreme Court justices: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.” As I explained four years ago here at NRO, the provenance of this Lincoln quotation is deeply suspect. But assume Lincoln actually said it. Consider the next sentence he is supposed to have said: “Therefore we must take a man whose opinions are known.”
As Elena Kagan argued 14 years ago, there are ways to acquire knowledge of someone’s opinions without “ask[ing] . . .what he will do” in a case actually pending or on the near horizon. Lincoln knew this too. Stephen Carter would rather obfuscate this matter than clarify it–and to make clarification somehow off limits.