Mar 25, 2022 - Politics & Policy

The Senate's Supreme Court charade

Illustration of a hand giving a thumbs up, with the thumb wearing a dunce cap.
Illustration: Aïda Amer/Axios

The Supreme Court keeps getting more powerful, but confirmation hearings for new justices consistently fail to match the gravity of what's at stake.

Why it matters: Nine people have the final say on all the biggest and most controversial issues in America — abortion, marriage, health care, immigration, voting rights, the boundaries of free speech.

  • But what’s supposed to be Congress' one chance to vet those people on their way to a lifetime appointment is instead usually an exercise in obfuscation, point-scoring and grandstanding.

Driving the news: Republicans pelted Judge Ketanji Brown Jackson this week with questions about culture-war issues that are a lot more relevant to the midterms than to the court’s work.

  • “Do you agree … that babies are racist?” Sen. Ted Cruz asked during a series of questions about critical race theory and schools.
  • “Can you provide a definition for the word ‘woman’?” Sen. Marsha Blackburn later asked. Jackson said she could not.

Flashback: During Justice Amy Coney Barrett’s hearings, Democrats spent a great deal of time and energy focused on health care, even invoking personal stories of people covered by the Affordable Care Act.

  • And, yes, there was a case pending before the Supreme Court about the ACA, just as there may one day be another case about trans rights. But there was also an election just a few months away, in which the legal threat to the ACA was a big part of Democrats' message.

The big picture: Television, followed by social media, turned these serious-business hearings into an irresistible platform for senators to indulge their personal or partisan ambitions. Nominees have learned the lesson from the failed nomination of Robert Bork, whose nomination was defeated because of the many hard-line opinions he was willing to discuss publicly.

  • The Supreme Court’s work is complex, and literally life-or-death in some cases. Judges nominated to the high court come before the Senate with a record of judicial decision-making. Yet the process rarely shines much new light on anything.
  • The nominee tries to escape without saying anything. The majority party lobs up softball after softball. The minority party tries to sink the nominee if it can, but usually has to settle for trying to score some short-term points.

Yes, but: When senators train their attention on substantive legal questions — which does happen, even though they’re rarely the attention-grabbing moments in these hearings — they don’t usually get very far.

  • Modern nominees’ aim is to get through their hearings without saying anything particularly interesting about the law, and most of them succeed.
  • Abortion always takes up a big chunk of these hearings, but every exchange follows the same script: Senators will try to pin the nominee down on which precedents are the good precedents and which precedents are the ones that can be overturned; the nominee will hew and haw and ultimately say that precedent definitely does exist, but that they can’t speak to live controversies.

What they’re saying: Years before she became a Supreme Court justice, then-professor Elena Kagan had some particularly tough criticism for the say-nothing era of confirmation hearings, calling them “a vapid and hollow charade.”

  • “Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government,” Kagan wrote in 1995. “Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.”
  • It’s hard to argue that the process has gotten better since then.
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