The “Science” of Judicial Selection

Realizing the extraordinary power of the federal judiciary to interpret our laws and enforce constitutional protections, the right has had its sights set on our courts for decades. Movement conservatives have engaged in a decades-long campaign to pack the courts with like-minded ideologues.

Over that time, conservative strategists have become experts in the art of navigating the judicial confirmation process, coaching their nominees to say as little as possible, spout carefully crafted talking points, and dodge any questions that might touch on substantive issues. These strategists have attempted to frame the issue so that senators might no longer feel comfortable probing the judicial philosophy of nominees, while simultaneously trying to convince large portions of the American public that the Senate’s only constitutional responsibility is to rubberstamp the sitting president’s appointments.

Today, an opinion piece in the New York Times took issue with the diminishing role that the Senate has played recently in the vetting of potential judges, particularly those who are nominated to sit on the Supreme Court. The editorial references a recent study which compared decisions made by nine Supreme Court justices to statements they made during their confirmation hearings. According to “empirical evidence,” statements about a nominee’s judicial philosophy “provide very little information about future judicial behavior.” The study suggests that “inquiries into specific issue areas…may be…more informative.”

One of the most fascinating observations made in today’s piece involved Justice Antonin Scalia, who we recently criticized for telling a group of law students that “it is the duty of anyone going through a confirmation hearing…to answer as few questions as possible about how [they] would vote as a judge.” According to the study, Justices Scalia and Thomas, who both professed a deep respect for stare decisis – giving deference to prior decisions of the Court – during their confirmation hearings, turned out to be the two justices most likely to overturn previous court decisions. Despite the fact that during his hearings Justice Thomas said that “stare decisis provides continuity to our system [and]…is a very important and critical concept,” Justice Scalia has said that his colleague “doesn't believe in stare decisis, period.”

This disconnect between what nominees say during their confirmation hearings and how they act once seated, is something that Alliance for Justices has been concerned about for quite some time. In our films Quiet Revolution and Supreme Injustices, we examine the differences between the judicial temperaments displayed by nominees before the Senate versus how they acted once they were appointed to their seat.

This strategy of disguising one’s actual judicial philosophy by offering up vague assurances to the Senate is precisely why AFJ works so hard to research the judicial records of pending nominees. We have always argued that the best way to determine how a nominee will act in the future is to examine how he or she has acted in the past. As such, it is important that the Senate reassert its constitutional advice and consent role, and thoroughly scrutinize nominees’ records and views. After all, these individuals are nominated largely because of the beliefs they hold and ideology they espouse and the Senate as well as the American people have a right to know what those views are.