Questioning Justice: Law and Politics in Judicial Confirmation Hearings

Abstract

Senate confirmation hearings for Supreme Court nominees have in recent years grown increasingly contentious. Nominees have refused to answer questions about their constitutional views on the ground that any such interrogation would compromise the constitutional independence of the judiciary. This Article offers a structural framework for analyzing the prerogative of senators to question nominees. The Constitution balances competing commitments to self-government and to the rule of law in its design for appointing tenured Article III judges. Senators may accordingly ask questions to obtain information necessary to discharge their democratic responsibilities in confirming nominees, but not in ways that undermine the autonomy of courts. We propose a practice of questioning that is fully consistent with this constitutional balance of values: Senators can ask Supreme Court nominees about how they would have voted in cases that the Supreme Court has already decided. We demonstrate that such questions neither compromise the independence of the judiciary nor politicize the rule of law, but instead serve important structural values. They can help generate the democratic legitimacy necessary for courts to exercise the formidable power of judicial review.