Confirmation Caginess

To basically concur with Eric’s post on the Constitutional Commentary article and the New York Times op-ed on the confirmation process, I think the article is banal and the op-ed is confused.

First, let’s do the article.  To advert again to the Casablanca line popular in this forum-I am shocked, shocked!-that justices are being cagey about their methodological and substantive commitments in their confirmation hearings and then diverging from them after being confirmed.  Of course they are.  No rational person who wished to get confirmed today would pull a Robert Bork, and ordinary people in fact do change their views over time. 

The confirmation hearing is best compared to a job interview.  Interviews give those privy to them a sense of the person’s integrity, quality of mind, personality, ability to work with others, and so on.  Interviews also introduce the candidate to the people who will be affected by their work-in this case the entire nation.  But in my experience, job interviews are generally a less accurate predictor of a person’s future performance than past performance in a similar job.

If that is true, a better predictor of what a Justice will do is what she or he did as a federal circuit judge, as this is the job closest to being a Supreme Court Justice.  So it’s no surprise that all nine Justices currently on the Court logged some time as federal circuit judges before they were elevated to the Supremes.  (For some, like Thomas or Roberts, this was for a very short period of time, but I attribute the brevity of the stints to competing values-such as the countervailing concern that judges with long paper trails are harder to get confirmed.)  I would therefore have been more interested in a study showing that judges dramatically changed their substantive and methodological priors after being elevated from the circuit to the Supremes.    

Now let’s do the New York Times op-ed .  The op-ed states that the fact that Supreme Court nominees don’t follow through on what they say in their confirmation hearings “makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process.”  I can see that it doesn’t help, but I don’t think it makes it “difficult.” The fact that Supreme Court nominees have to be cagey does not, as mentioned above, mean that the hearings don’t give the senators a lot of important information.  And even if the senators are only voting for a justice to uphold a particular methodology or substantive commitment, confirmation caginess just means senators should ignore the hearings, as Eric suggests, and go to the paper trail.  The op-ed even suggests as much when it states that “[s]enators should examine a nominee’s entire legal career.”

This raises a deeper problem with both the op-ed and the article-the unarticulated assumption that Justices who say one thing in a confirmation hearing and then do another are necessarily acting in bad faith or being inconsistent in an indefensible way.  At the risk of stating the obvious, Justices who sit on the court for decades are likely to change their minds about some views they hold. 

To take one of many examples, then-Justice Rehnquist was a vigorous dissenter in the 1970s cases that sought to give gender-based classifications heightened scrutiny.  In the 1996 VMI case , though, Rehnquist voted with the majority to force an all-male college to open its doors to women.  And of course, in the 2003 Hibbs case, he surprised a lot of people when he writes the majority opinion upholding the Family and Medical Leave Act. 

At one point in his VMI concurrence , Rehnquist says state institutions should not be held liable for sex discrimination until they have received a clear signal from the Court that such discrimination is unlawful.  That comes to my ear like autobiography-“don’t hold me responsible for my prior views on sex discrimination because I didn’t have a clear sense of its harms until a certain point in time.”  Rehnquist didn’t say one thing and do another-he did one thing and then did another-or, to put it more bluntly, he changed his mind. 

Of course, if I am to defend Rehnquist’s drift from right to left on this issue, I must also be willing to defend drift from left to right.  But that’s not a problem for me for these purposes.  To the contrary, I think it’s inevitable that we as human beings will, in complete good faith, change, vacillate, and grow.  It doesn’t puzzle me that a person can’t say in one slice of time (however important that slice is framed to be) what the stream of her future decisions will look like.  What puzzles me that anyone would believe that she could.