University of Pennsylvania Journal of Constitutional Law, Vol. 10, No. 2 (January 2008), pp. 331-360


The United States Constitution grants to the Senate the duty to provide its “advice and consent” to the appointment of Supreme Court Justices. Just how senators should exercise that duty, however, is deeply contested. Much of the dispute about the Senate's role involves the appropriate scope of questions the senators should ask, and what nominees should be expected to answer, at the confirmation hearing held by the Senate Judiciary Committee. Opponents of vigorous senatorial questioning argue that such questioning infringes on the independence of the judiciary; proponents argue that the nominees' failure to answer probing questions hinders the Senate's constitutional obligation to meaningfully consent to nominations. Professors Robert Post and Reva Siegel recently have jumped into this dispute by proposing that Supreme Court nominees properly can be expected to answer questions about how they would have voted in cases the Supreme Court has already decided. This approach, they argue, avoids inappropriately infringing on judicial independence while enhancing the ability of the Senate to meaningfully consent to nominations.

This Article engages positive legal 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 rest. In doing so, this Article examines the confirmation hearing transcripts of the nine Justices who comprised the final Rehnquist Court. I determine how often these nominees were willing to provide opinions about previously decided Supreme Court cases, for which cases they were willing to provide such opinions, and which cases they refused to discuss, on the basis that doing so would compromise their judicial independence (or impartiality) in future cases.

I find that these nominees, in fact, provided opinions about many previously decided Supreme Court cases, and that there was some surprising variety in the cases on which the Justices, both as a group and as individuals, would and would not opine. I also show that much of this variation cannot be attributed to the distinction drawn by the nominees themselves between the propriety of opining on “settled” versus “unsettled” cases. The actual practice of these recent nominees thus supports Post and Siegel's conclusion that concerns about the decision-making independence of the Justices, even taking the nominees' own views of what that independence 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 as a court, by effectively conditioning confirmation on the nominees' opinions about specific cases, thus giving the Senate undue influence over a purportedly “co-equal” branch of government. Drawing on both the actual practice of the Rehnquist Court nominees and existing legal and political science scholarship, I argue that these objections also are suspect, in three distinct ways. First, the actual practice of the nominees is not supportable on that basis. Second, existing political science scholarship shows us that adoption of the Post-Siegel plan is unlikely, in any event, to increase the type of “politicization” of the confirmation process that underlies this concern. Third, existing positive legal scholarship seriously casts doubt on the very premise on which the institutional independence objection rests. This scholarship also, however, suggests an alternative vision of judicial independence, one fully compatible with the Post-Siegel proposal, which is itself both normatively desirable and grounded in a more realistic understanding of the role the Supreme Court actually plays in our governing system.

I thus conclude that the Post-Siegel proposal, if accepted by senators and nominees, has the potential to bring some much needed realism and clarity to the Senate's role in the Supreme Court confirmation process, without posing a significant threat to either the individual decision-making independence of Supreme Court Justices or to the institutional independence of the Supreme Court.