Article by William G. Ross
The numerous refusals by William H. Rehnquist and Antonin Scalia at last year's Senate confirmation hearings to answer questions concerning their judicial views and records renewed and sharpened a conflict between nominees and Senators that has occurred at nearly every confirmation hearing during the past thirty years.
Although the appearance of United States Supreme Court nominees before the Senate Judiciary Committee is an increasingly significant part of the confirmation process, questions about the appropriate scope of a nominee's testimony remain unresolved. A consensus has emerged that the Senate properly may inquire into the judicial, political, and social philosophies of a nominee inasmuch as those philosophies color a justice's interpretation of the generalities of the Constitution. Yet there is controversy about the extent to which the Senate may directly question a nominee about those philosophies. Proponents of free-ranging inquiry argue that Senators have no other means of accurately ascertaining a nominee's ideas and are unable to render informed advice or intelligent consent to a nomination if a nominee's philosophies remain unclear. Yet nominees fear that expansive testimony may prejudice their performance on the Court. The tension between the Senate's need to obtain information and the nominee's need to preserve judicial integrity has created confusion and resulted in an impasse between the Senators and the nominee.
While this conflict did not occur at the recent hearings on Robert H. Bork, there is no reason to suppose that Bork's extraordinary volubility set a precedent for future nominees who do not need to explain so many highly controversial past pronouncements to particularly hostile committee members. Moreover, the decisive defeat of the Bork nomination appears likely to inhibit future nominees from testifying so freely since Bork's expansive testimony seems to have cost him support.
The dilemma concerning the proper scope of testimony is illustrated by the transformation of William Rehnquist's attitudes on the issue. As a young attorney in 1959, Rehnquist authored a Harvard Law Record article arguing that the Senate should aggressively inquire into the substantive opinions of Supreme Court nominees. He contended that the Senate needs to inquire into such beliefs to properly discharge its constitutional duty since stare decisis does not exist in constitutional law and ‘the provisions of the [C]onstitution which have been most productive of judicial law-making—the ‘due process of law’ and ‘equal protection of the laws' clauses—are about the vaguest and most general of any in the instrument.’ Chiding the Judiciary Committee for its perfunctory interview of Charles Evans Whittaker in 1957, Rehnquist asked, ‘what could have been more important to the Senate than Mr. Justice Whittaker's views on equal protection and due process? . . . The only way for the Senate to learn of these views is to ‘inquire of men on their way to the Supreme Court something of their views on these questions.’'
At his hearings as a Supreme Court nominee in 1971, however, Rehnquist refused to answer many questions about his views on constitutional issues, contending that his answers might prejudice his performance on the Court. When Senator John Tunney (D-Calif.) asked Rehnquist whether he had changed his mind about whether the Senate ought to be interested in a nominee's views on due process, Rehnquist replied that ‘I haven't changed my mind that the Senate ought to be interested in a nominee's views,’ but ‘I have come to have an increasing sympathy for the problem of the nominee to respond to very legitimate questions from the Senators without in some way giving the appearance of prejudging issues that might come before him.’ Similarly, Rehnquist stated during the hearings on his nomination in 1986 that ‘I don't think I appreciated, at the time I wrote that, the difficult position that the nominee is in.’
Virtually every nominee who has been questioned by the Senate Judiciary Committee about his social, economic, political, or judicial philosophies has refused to answer questions on the ground that his answers might prejudice, or appear to prejudice, his adjudication of issues that might come before the Court. These refusals leave Senators bereft of the information needed to properly evaluate the nomination. As Senator Sam Ervin (D-N.C.) exclaimed in frustration at the 1968 hearings on Fortas, nominees ‘cannot tell us anything about the future, and they cannot tell us anything about the past, which means they cannot tell us anything.’ It is therefore not surprising that, as one scholar has observed, ‘Senate questioning has proved astonishingly ineffective in eliciting the desired information.’
By establishing categories of questions that are asked at confirmation hearings, and by adopting guidelines for determining the propriety of responses, much of the confusion can be eliminated and future stalemates can be prevented. An analysis of questions asked at confirmation hearings indicates that most questions fall into one of the following categories: (1) questions about actual pending cases; (2) questions about cases that have already been adjudicated; (3) hypothetical questions; (4) questions about general constitutional issues; (5) questions about past statements or writings of the nominee; (6) questions concerning the process of adjudication; and (7) questions concerning the nominee's personal opinions. To understand the significance of these categories and to develop standards for responding to questions in each category, it is necessary to analyze the relevant law on recusal, since most nominees have invoked the threat of prejudice as the principal reason for refusing to answer questions. It will also be necessary to examine the historical evolution of testimony by Supreme Court nominees at Senate confirmation hearings.
About the Author
William G. Ross. Member of the New York Bar; Attorney at Oppenheimer Wolff & Donnelly, New York; A.B. 1976, Stanford University; J.D. 1979, Harvard Law School. The author is also a member of the faculty at the New School for Social Research, where he teaches a course on the history of the Supreme Court and the Constitution.
Citation
62 Tul. L. Rev. 109 (1987)