The hearings concerning the nomination of Judge Samuel Alito to the Supreme Court obviously are of enormous importance. Most significantly, Justice Sandra Day O’Connor was the decisive fifth vote in countless important areas, such as abortion, affirmative action, campaign finance, death penalty, federalism, and separation of church and state. Alito’s confirmation thus has the potential to dramatically change constitutional law. More subtly, the Alito hearings may go a long way to determining whether confirmation hearings serve any useful purpose or are just a sham. Professors Robert Post and Reva Siegel have offered a sensible and very desirable approach to what should be asked of nominees at confirmation hearings: How would they have voted in cases previously decided by the Supreme Court? This is a way that senators can learn the views of the nominee, without asking how the individual will vote on cases that will come before him or her as a Justice.

This proposal, however, requires that senators make clear that a nominee will not be confirmed unless he or she answers these questions. The Post/Siegel proposal necessitates that the Senate emphatically declare: No answers means no confirmation. Although Republicans may see it in their short-term interest to resist this when it comes to Alito, senators from both parties gain from it in the long-term. When there is a Democratic President, Republicans will want to know the views of the nominee, just as Democrats do now with Alito. But even if Republicans resist the Post/Siegel proposal, Democrats can enforce it by being clear that they will block Alito’s confirmation unless he answers these questions.

There seem to be only three possible reasons for not asking a nominee about his or her views about prior decisions. Upon examination, none make sense. One possible argument is that the nominee’s views don’t matter in how the Court decides cases. This was the message that John Roberts tried to communicate in his confirmation hearings, beginning with his opening remarks in which he likened Justices to umpires. But unlike umpires, Supreme Court Justices are making the rules as well as applying them and have tremendous discretion in doing so.

The easiest example of this is the fact that a high percentage of constitutional cases involve some sort of balancing. Does a court’s need for information outweigh executive privilege? Is diversity in the classroom a compelling government interest? Does society’s interest in morality justify prohibiting obscenity? Since constitutional rights and protection from discrimination is almost never absolute, there always is the need to decide if the government’s interest is sufficient to justify its actions. Inevitably, the individual Justice’s values and views affect the conclusions that he or she comes to in the case.

This should hardly be surprising or controversial. Throughout American history, Presidents have used ideology as a factor in selecting federal judges. No one would deny that President George W. Bush picked John Roberts and Samuel Alito in large part because they were conservative Republicans. Likewise, throughout American history, the Senate has considered ideology in deciding whether to confirm nominees. When George Washington nominated Associate Justice John Rutledge to be the second Chief Justice of the United States, the Senate rejected him because they disliked his views on the role of the United States as a neutral party in the war between England and France. In the nineteenth century, over twenty percent of presidential picks for the Supreme Court were rejected, almost all on ideological grounds. The reason, of course, is that presidents and senators long have acknowledged the reality that Justices have discretion and how it is exercised depends on the individual’s experiences, values, and views.

A second possible reason for a nominee not answering questions about his or her views is if he or she does not have highly articulated views on particular issues. As to the proposal by Professors Post and Siegel, it is possible that a nominee may not have thought about specific past cases that interest Senators. Of course, the easy remedy for this would be for the senators to let the nominee know in advance which cases they will focus on and to provide sufficient time for the nominee to read the Court’s opinion and even the briefs that were filed in the case. But the reality is that nominees almost certainly have views as to the past cases that they are likely to be questioned about. John Roberts and Samuel Alito, for example, wrote briefs and memos in the Justice Department arguing that Roe v. Wade was wrongly decided. It is not credible for them to say that they don’t know how they would have voted if they had been on the Court at the time.

A third possible objection to requiring nominees to answer questions is that it undermines the impartiality of the judiciary. This was John Roberts’s repeated answer to questions throughout his confirmation hearings and it followed the pattern of recent nominees who refused to answer anything that might give an inkling as to how the nominee might vote on specific issues. It allows the nominee to stonewall the senators, but sound noble in doing so. The nominee is refusing to answer questions in the name of fairness and an impartial judiciary.

The proposal by Professors Post and Siegel elegantly avoids this problem. The nominee is not asked how he or she will vote on a future matter, but how he or she would have acted in the past. Critics will argue that prior cases may be reconsidered. The Court certainly will be asked in the years ahead to overrule Roe, Grutter v. Bollinger (which upheld affirmative action by colleges and universities), Lemon v. Kurtzman (which prescribes the test for when the government impermissibly establishes religion), and many other controversial decisions. But under the Post/Siegel proposal, the nominee is not being asked how he or she will vote in that circumstance, just what he or she would have done in the past.

This is a significant difference. Everyone knows how sitting Justices voted in the prior cases if they were on the Court at the time of the decision. No one would dream of suggesting that the seven Justices who participated in Grutter who remain on the Court are disqualified from participating in a case asking for it to be overruled. The fact that litigants know their views about the prior decision is not seen as depriving them of impartiality or preventing a fair judicial process. Nor, then, would knowing how a nominee would have voted in the case deprive impartiality or prevent a fair judicial process.

Indeed, everyone knows that when the Court reconsiders Roe, Justices like Stevens and Ginsburg are sure votes to affirm it, and Justices like Scalia and Thomas are sure votes to overrule it. Knowing their views in advance never has been seen as requiring their recusal. Likewise, knowing a new Justice’s views, by virtue of honest answers during confirmation hearings, would not require recusal or prevent impartial adjudication. The Supreme Court, in an opinion by Justice Antonin Scalia, made exactly this point in Republican Party of Minnesota v. White in 2002. A Minnesota law prohibited candidates for elected judicial office from stating their views about disputed legal or political issues. The State defended the law by saying that it was necessary to prevent the impartiality of the judiciary. The Supreme Court rejected the argument and declared the law unconstitutional. Justice Scalia explained that candidates for judicial office have views on important legal issues and being ignorant of those views doesn’t make the judge more impartial. There is no difference in this regard between elected and appointed judges. Quite the contrary, as a lawyer who argues cases in appellate courts including the Supreme Court, I would much rather know the judge’s views than pretend that he or she has none.

Thus, none of the three reasons for failing to ask a nominee’s views make any sense. The key question, then, is how to gain useful information about the individual’s position on important issues. Professors Post and Siegel have offered an easy and yet profoundly important answer: Ask the nominee how he or she would have voted on past cases.

I completely agree with their proposal and would add one set of questions. At this moment in time, the concern is that nominees like Roberts and Alito will cast decisive votes to end constitutional protection for abortion rights, to eliminate affirmative action, to obliterate a wall separating church and state. Based on their prior writings, there is every reason for this fear. Thus, I would also like to ask them: “Based on your prior record, is there anything you can point to that would indicate that you would not vote to overrule Roe v. Wade? Based on your prior record, is there anything you can point to that would indicate that you would not vote to eliminate all affirmative action programs? Based on your prior record, is there anything you can point to that would indicate that you would not vote to overrule Lemon v. Kurtzman?” Such questions are not asking how they will vote, but focus—as does the Post/Siegel proposal—on the past. Here it is giving the nominee the chance to directly respond to the greatest concerns surrounding confirmation to the Court based on the individual’s prior record. The reality, of course, is that for Roberts and Alito the record on these issues point in only one direction. The suggested questions highlight this, but give the nominee the chance to respond.

This is a pivotal time for constitutional law generally and for confirmation hearings in particular. If the Senate will continue to allow nominees to say nothing about their views on key issues, there seems little point to continuing what is just a charade. If the Senate is going to perform its constitutional duty to “advise and consent” in a meaningful way, it must find a way of learning the views of the nominee. Professors Post and Siegel have provided an excellent way to accomplish this.

Erwin Chemerinsky is Alston & Bird Professor of Law and Political Science, Duke University.

Preferred Citation: Erwin Chemerinsky, Making Confirmation Hearings Meaningful, Yale L.J. (The Pocket Part), Jan. 2006, http://yalelawjournal.org/forum/making-confirmation-hearings-meaningful.