Constitutional Commentary, Vol. 24, No. 1 (Spring 2007), pp. 127-198

Abstract

The interpretive or judicial philosophies of Supreme Court Justices can be thought of as “packages of beliefs” about how to interpret the law, packages that go by names like formalism, originalism, and textualism. Given the reasonable assumption that a judge's judicial philosophy could matter for how he or she will decide cases, the judicial philosophy of a nominee to the Supreme Court is of great interest to members of the Senate who vote on a nominee's confirmation. Figuring out a nominee's judicial philosophy is, consequently, one purpose of the confirmation hearings in the Senate, and Senators often claim to base their votes on their assessments of a nominee's judicial philosophy.

Many Supreme Court observers believe, however, that nominees reveal little useful information at their confirmation hearings. While an occasional nominee (such as Robert Bork) will discuss his or her views in detail, most nominees are more guarded. Nominees repeatedly refuse to answer specific questions, or to disclose information about how they would vote in particular cases.

Obviously, what types of questions the Senators should ask--or the nominees should answer--is far from clear. Few, however, disapprove of questions about a nominee's judicial philosophy. In general questions about interpretive methods such as the role of precedent or legislative history do not provoke explicit reactions of impropriety. So while Senate confirmation hearings have numerous purposes, discovering a nominee's judicial philosophy is clearly one of them. But this raises a basic question: Do the exchanges between the nominees and the Senators actually reveal anything useful about a nominee's judicial philosophy?

Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings statements on these issues, and evaluate whether the rankings correlate with the Justices' voting patterns or, in the case of legislative history, the content of their opinions. Given the focus of this Symposium – Empirical and Mathematical Inquiries of the Rehnquist Court – we focus on the Rehnquist Natural Court (the period from 1994 to 2005 when the same nine Justices served together). This focus allows for consistent comparison of voting and decisionmaking patterns among the nine Justices.

Part II of this Article provides a description and historical account of the Rehnquist Natural Court and its Justices – Chief Justice Rehnquist and Justices Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. Part II also examines the various purposes other than revealing judicial philosophies that the confirmation hearings may serve. Part III describes our quantitative dataset, methodology and results, including our use of blind surveys to rank confirmation hearing statements. Since we know of no other study that attempts to measure confirmation hearing statements, we hope this symposium piece facilitates further discussion on how one might best evaluate confirmation hearing statements, and, thus, how we might improve upon our preliminary methodology (e.g., improving the survey instrument, including other areas of law, changing the population of the survey participants, or finding other ways besides surveys to operationalize confirmation hearing statements). Part IV explains and uses a different methodology. This Part compares confirmation hearing statements about the role of legislative history with the percentage of authored cases invoking legislative history. Part V discusses our conclusions and presents suggestions for additional research.

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