I'm Sorry, I Can't Answer That

Abstract

Professors Robert Post and Reva Siegel have suggested that nominees to the U.S. Supreme Court should answer questions posed at their Senate confirmation hearings regarding how they would have voted in cases the Supreme Court has already decided. This practice, they argue, would enable the Senate to exercise its constitutional advice and consent duties without compromising judicial independence. This paper uses positive scholarship to support Post and Siegel's conclusion that objections to their proposal are not easily justified by the concerns about judicial independence on which they purport to be based. In doing so, I examine the confirmation hearing transcripts of the nine justices who sat on the final Rehnquist Court. I find that these nominees in fact provided opinions about many previously decided Supreme Court cases, and that there was surprising variety in the cases on which they would and would not opine. I also show that much of that variety is not attributable to the distinction drawn by the nominees themselves between opining on settled and unsettled cases. The actual practice of these nominees thus supports Post and Siegel's conclusion that concerns about the impartial decision-making independence of the individual justices, even taking the nominees' own views of what that impartiality requires into account, do not appear to be what is animating objections to their proposal. I then consider whether those objections are nonetheless justified by concerns that adoption of the Post-Siegel proposal would compromise the institutional independence of the Supreme Court itself, by effectively conditioning confirmation on the nominees' opinions about specific cases. Drawing on both the actual practice of the Rehnquist Court nominees and existing positive legal and political science scholarship, I argue that this objection also is suspect, and, moreover, that taking positive legal scholarship in this area seriously casts doubt on the very premise on which it rests. I thus conclude that the Post-Siegel proposal has the potential to bring additional information and clarity to the confirmation process, at little cost to judicial independence.

Keywords: Constitutional Law, Supreme Court, Confirmation