The Supreme Court Confirmation Process Needs Switching Up

We are through yet another messy U.S. Supreme Court confirmation fight, and you’d be hard pressed to find anyone willing to defend the political circus that the process has become.

To recap just the most recent confirmation, senators on the Senate Judiciary Committee spent nearly 24 hours questioning Judge Ketanji Brown Jackson and apparently learned nothing from that time, as they proceeded in committee to vote exactly along partisan lines, which was largely predicted before the hearings even began. The vote before the Senate also largely broke down along partisan lines, save for three Republicans joining the Democratic majority to confirm her after her confirmation was already secured by Democratic votes.

If you tuned in to watch the hearings, you were just as likely to hear a senator shamelessly smear Judge Jackson as you were to hear a senator effusively praise her. And you were unlikely to hear a senator on either side of the political aisle ask genuinely probing questions of the sort that might help us better understand the person being considered for a lifetime appointment to the nation’s highest court—i.e., the supposed purpose of holding public hearings.

Reverse Parts of the Process

One simple way to improve the confirmation process might be to reverse parts of it.

As it works now, each senator is afforded only 50 minutes to question the nominee, broken down into a 30-minute session and then a 20-minute session, which is simply not enough time to meaningfully engage with the vast expanse of the law and the nominee’s legal experience. After the public hearings conclude, senators submit to the nominee written questions for the record (QFRs), which the nominee answers and submits to the committee about a week after the hearings, after which they are made public.

Anyone familiar with how litigation works might already see this as backward. Depositions serve as a written record for trial, and in an improved confirmation process, the QFRs would serve as the written record to be discussed at later hearings.

This would reign in the scope of what is considered during the public portion and allow senators to delve deeper into the issues, since the nominee would have already provided the basics to any topics a senator would want to cover.

You could even insert numbers to this proposal: Each senator gets 20 questions to ask a nominee in the QFRs, and of those, a senator could follow up on three questions during the public hearing. That ought to do it.

Rationale for Nominee Testimony

The first public Supreme Court confirmation hearing was held in 1916 for Louis Brandeis, but the first nominee to testify openly was Felix Frankfurter, President Franklin Roosevelt’s pick in 1939.

That had less to do with Frankfurter’s nomination than with the outcry over the speedy 1937 confirmation of Hugo Black, who—it was revealed just after his confirmation vote—had accepted and not repudiated a lifetime membership in the Ku Klux Klan. The Frankfurter nomination, said the Judiciary Committee chairman at the time, would instead be “scrutinized thoroughly” before a committee vote.

Public testimony from the nominee only became a standard aspect of the confirmation process with the 1955 nomination of John Marshall Harlan, which coincided with a time the court was beginning to take on an expanded role within our democracy with respect to civil and individual rights. That rationale still holds.

Balancing Public Interest with Politics

The Supreme Court continues to play an oversized role in our democracy, and it has never polled as poorly with the American people as it does today. This makes it even more important to ensure the process provides real scrutiny of the nominee and addresses citizens’ good-faith concerns.

But that doesn’t mean each confirmation hearing must devolve into a show of debased partisan politics, or a shouting match, or even a lovefest. And we cannot and should not go back to a time pre-Brandeis when the Senate undertook the business of vetting Supreme Court nominees away from the public’s watchful eye.

With modest tweaks to the process, such as having senators ask written questions for the record before the in-person hearings, and then keeping their live questioning to the matters discussed in that written record, we can better balance the public’s interest in a thorough consideration of nominees with the political realities natural to having politicians participate in any public process.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Tyler Cooper is senior researcher of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal judiciary.