Introduction
The Senate Judiciary Committee hearings of Supreme Court nominees are today one of the most visible aspects of the confirmation process. Nominee testimony before the Committee frequently captures the national imagination, sparking intense debate about a nominee's fitness for the bench and the proper place of the Court and the Constitution in the US political system. The Judiciary Committee's role in the process has not always been so prominent, however.
This transformation is often portrayed as a relatively recent one, triggered by high‐profile and largely bemoaned events, such as the failed 1987 nomination of Robert Bork or the increase in political polarization seen in the past few decades (Carter Reference Carter1994; Eisgruber Reference Eisgruber2007; Dworkin Reference Dworkin2009). In this article, we investigate the institutional developments that have transformed the Judiciary Committee's role in the Supreme Court confirmation process, focusing primarily on the question and answer sessions that are the heart of the confirmation hearings. What emerges is not a story of sudden or recent change, but one of a multifaceted and incremental opening up of the process to an ever‐widening array of democratic influences.
These changes can be usefully thought of as involving two major types of developments: the advent of public hearings in 1939 in which the nominee is expected to answer unrestricted questions from the senators; and the changing nature and content of the questions posed to nominees. These latter developments include a rise in the number of hearing comments, particularly in the 1980s; increased attention to nominees’ views of judicial decisions beginning in the 1960s; an expansion of the scope of issues addressed starting in the 1970s; and the equalization of questioning between majority and minority party senators that first took place in the 1980s. Placing these changes in their institutional context, as we do below, makes it easier for us to explore why they have occurred.
To demonstrate this, we engage work concerned with how political entities become institutionalized (Squire Reference Squire1992; Swift Reference Swift1996; Ragsdale and Theis Reference Ragsdale and Theis1997; McGuire Reference McGuire2004; Vining, Zorn, and Smelcer Reference Vining, Zorn and Smelcer2006; Crowe Reference Crowe2012). By institutionalization, we are referring to the means by which institutions adopt regularized procedures that enable them to fulfill their given tasks (Huntington Reference Huntington1965; Hibbing Reference Hibbing1988; McGuire Reference McGuire2004). Over time, institutions embrace certain characteristics that facilitate the achievement of a distinct identity and way of doing things (Ragsdale and Theis Reference Ragsdale and Theis1997, 1282). This results in the institution achieving a level of self‐maintenance as the organization becomes prized “for its own sake” and develops an identity that is uniquely its own (Selznick Reference Selznick1957, 17).
As it applies to the Judiciary Committee and the Supreme Court confirmation process, we view the primary task of the Committee as being to aid the Senate in performing its advice and consent role; that is, to assist senators in making informed decisions as to whether to support or oppose a nominee's appointment to the Court (Epstein and Segal Reference Epstein and Segal2005; Williams and Baum Reference Williams and Baum2006; Ringhand and Collins Reference Ringhand and Collins2011). Institutionalization, then, refers to the procedures the Committee adopts to fulfill this role and stake out its unique identity in the Supreme Court confirmation process. While this has occurred in a variety of ways, our primary focus in this article is on the most visible, and arguably the most significant, role of the Committee: the development of the Supreme Court confirmation hearings in the 1939–2010 era.Footnote 1
Through these question and answer sessions, senators are able to examine nominees on a host of topics, including their backgrounds, judicial philosophies, understanding of existing precedent, and views on the most pressing issues facing society (Ringhand and Collins Reference Ringhand and Collins2011; Batta et al. Reference Batta, Collins, Miles and Ringhand2012). The nominees’ responses, made in public and under oath, provide substantial information to senators and the US public, potentially shaping these actors’ views of the nominees’ fitness for the high bench. As a result, the hearings can affect the fate of the nomination before both the Judiciary Committee and the full Senate (Watson and Stookey Reference Watson and Stookey1988; Wedeking and Farganis Reference Wedeking and Dion2010; Collins and Ringhand Reference Collins and Ringhand2013).
We illustrate how various actors shape institutional developments for both legitimating and instrumental purposes (Hall and Taylor Reference Hall and Taylor1996; Pierson Reference Pierson2000).Footnote 2 By legitimating, we mean that institutional arrangements are adopted to promote social acceptance of the activities of the institution. In this sense, norms develop that are viewed as appropriate in light of the institution's role in the political process. As the institution gains legitimacy, its value as a unique and venerable part of the governing system grows (Meyer and Rowan Reference Meyer and Rowan1977). Institutions seek to gain legitimacy both to foster the public's acceptance of the institution and to enhance the power of the institution in the governing system (Fenno Reference Fenno1962). By instrumental, we mean that institutional change is motivated by goal‐seeking behavior. That is, institutions develop that promote the ability of actors in those institutions to achieve various ends (Pierson Reference Pierson2000).
We use an original dataset of confirmation hearing dialogue to demonstrate how membership on the Judiciary Committee allows senators to pursue both legitimating and instrumental goals. Grounding our discussion of these changes in these data allows us to explore them carefully in their full institutional context, thereby more clearly revealing the legitimating and instrumental goals they advanced, as well as the way they intersect with each other, and with external events.
Documenting this transformation is important for a number of reasons. First, it contributes to our understanding of change in political institutions by illustrating how the role of one of the most visible Senate standing committees has evolved over time. As we demonstrate, what began as a largely inconspicuous body has become one of the most public examples of checks and balances in the entire political system. Despite this, we lack a firm grasp on the developments that led to this evolution.Footnote 3 Second, this research illuminates how changes in one institution can affect those in another, furthering our understanding of interbranch relations. We show that as the salience of the Supreme Court in US politics expanded in the 1950s, the dynamics of the Senate Judiciary Committee hearings changed to give enhanced public scrutiny to potential members of the Court. Third, this research further corroborates how institutional change affects the behavior of political actors (March and Olsen Reference March and Olsen1984; Hall and Taylor Reference Hall and Taylor1996). For example, we demonstrate how gavel‐to‐gavel television coverage of the hearings beginning in 1981 enhanced the ability of senators to use the hearings to convey information to their constituents. We argue that senators took advantage of this for instrumental reasons, as it allowed them to position take, credit claim, and advertise in a high‐profile forum, thus enhancing their reelection prospects (Mayhew Reference Mayhew1974). Taken as a whole, this research informs our understanding of institutional change, the Senate's advice and consent role, institutional interactions, and the behavior of political actors.
Nominee Testimony
The Constitution says very little about the confirmation process beyond charging the president with nominating judges to the Supreme Court and the Senate with confirming them. Further, it makes no mention of the congressional committee structure that is a major feature of the contemporary Senate. Prior to the creation of the Judiciary Committee in 1816, the Senate as a whole handled Supreme Court nominations in private without the benefit of confirmation hearings (Rutkus and Bearden Reference Rutkus and Bearden2009; Beth and Palmer Reference Beth and Palmer2011).
The first move toward the process we know today occurred in 1816, when the Senate established the Committee on the Judiciary as a standing committee, along with eleven other standing committees (Gamm and Shepsle Reference Gamm and Shepsle1989, 50). Despite the fact that overseeing the federal judiciary was part of its original charge, not all Supreme Court nominations were referred to the new Judiciary Committee. From 1816–1867, only two‐thirds of Supreme Court nominations reached the Committee, all by motion. However, in 1868, the Senate began automatically referring Supreme Court nominations to the Committee. Since this date, all but six nominations have been referred to the Committee (Rutkus Reference Rutkus2010).Footnote 4 This revision had the effect of differentiating the role of the Committee from the chamber as a whole, thus marking an early contribution to the development of its unique identity in the confirmation process.
The Movement to Open Hearings
The first confirmation hearing of a Supreme Court nominee occurred in 1873, when the Committee held closed‐door sessions on the nomination of George Williams to the position of Chief Justice. During these hearings, the Committee examined documents and took testimony from outside witnesses. The Committee's focus was narrow: it only examined evidence involving specific allegations that Williams used Department of Justice funds for household expenses. The Committee apparently was convinced that all was not as it should be, and Williams's nomination was subsequently withdrawn by President Grant (McFeely Reference McFeely1981, 391; Rutkus and Bearden Reference Rutkus and Bearden2009, 41).
The next hearings held by the Committee were on the nominations of Louis Brandeis in 1916 and Pierce Butler in 1922, both of whom were confirmed. The Brandeis hearing was significant, in that it marked the first time hearings were open to the public. It also was controversial, and attracted bitter opposition from conservatives fearful of Brandeis's reputation as “the people's lawyer,” as well as from anti‐Semites (Maltese Reference Maltese1995, 98; Abraham Reference Abraham2008, 141–44). Brandeis himself not only did not testify, but also refused to address the accusations made against him in any way (Abraham Reference Abraham2008, 143). The Butler hearings, in contrast, were held behind closed doors and again focused on a relatively narrow set of allegations; this time, that Butler acted in an unprofessional manner while serving on the University of Minnesota Board of Regents, and that he was biased toward railroad interests (Stras Reference Stras2009). Like Brandeis, Butler did not testify in his own defense.
These early hearings thus differed from contemporary hearings in four significant ways. First, the hearings were reserved for allegedly controversial nominees. From 1873–1922, there were thirty‐seven appointments to the Court, but only three hearings (Rutkus and Bearden Reference Rutkus and Bearden2009). Second, the hearings were limited in their scope, in that they focused predominately on the nominees’ judicial temperaments and ethical standards, usually in the context of a particular accusation or scandal. Third, at none of these hearings did the nominees themselves testify. Instead, the hearings were limited to scrutinizing documents and taking testimony from witnesses other than the nominee (Rutkus and Bearden Reference Rutkus and Bearden2009). Fourth, two of the three hearings were held behind closed doors. Thus, the norm of holding open, public hearings featuring unrestricted nominee testimony was not yet established.
In 1925, Harlan Stone was the first nominee to testify before the Judiciary Committee. However, as with the three previous hearings, the purpose of his hearing was to deal with specific claims that he was unfit to serve on the high Court, rather than to engage the nominee in open‐ended questioning about constitutional law. In particular, Stone testified at the urging of President Coolidge to answer a limited set of inquiries regarding his prosecution of individuals involved in the Teapot Dome affair during his tenure as attorney general. Stone's hearing was closed to the public and the questioning was restricted to his involvement in that scandal (Rutkus and Bearden Reference Rutkus and Bearden2009; Ringhand and Collins Reference Ringhand and Collins2011). From 1925–1939, six other nominations were made to the Court, three of which featured confirmation hearings. At none of these hearings did the nominees testify (Rutkus and Bearden Reference Rutkus and Bearden2009).
In 1939, a major change to the Committee's role in the confirmation process was made when it initiated the practice of holding open public hearings for all Supreme Court nominees. Changes in the electorate, brought about by the enactment of the Seventeenth and Nineteenth Amendments, as well as the emergent civil rights movement, increasingly had required senators to expand their electoral appeal to a wider array of constituents (Egerton Reference Egerton1995, Part II; Maltese Reference Maltese1995, 37; Fischer Reference Fischer2011, Chapters 4 and 6). The Committee in 1939 also faced a more specific problem: the need to legitimize its work in light of its handling of the nomination of Hugo Black.
Black was nominated by Franklin Delano Roosevelt in 1937 and was assured a speedy path to confirmation because he was a former senator. In fact, the Senate took just five days to confirm him and the Judiciary Committee did not hold public hearings on the nomination (Rutkus and Bearden Reference Rutkus and Bearden2009). After he was confirmed, Ray Sprigle of the Pittsburgh Post‐Gazette revealed that, prior to his appointment, Black had accepted and apparently never relinquished a lifetime membership in the Ku Klux Klan (KKK) (Leuchtenburg Reference Leuchtenburg1973).
These allegations took the country by storm, with Sprigle winning a Pulitzer Prize for breaking the story (Newman Reference Newman2003). Although the senators may or may not have understood the scope of Black's involvement with the Klan prior to their vote, the public perception was that the nomination was rushed through the Senate to avoid airing the issue in a public hearing. Belief in a cover‐up was exacerbated when President Roosevelt broke tradition by having Black sworn in at a private ceremony at the White House, instead of at the customary public ceremony at the Supreme Court. In response to growing public outrage, Black discussed his affiliation with the KKK in a radio address in which he admitted belonging to the Klan as a young man and receiving an “unsolicited” lifetime membership, while also stating that he had resigned from the organization a decade before his appointment to the Court (New York Times 1937b).
Black unceremoniously took his seat on the bench just three days after his radio speech, but the damage to the Senate and the Judiciary Committee was done. The media and the public would seemingly no longer accept closed‐door hearings ostensibly instituted to cover up a nominee's past indiscretions. Exemplifying this, the American Bar Association passed a resolution at its 1937 meeting petitioning the Senate to avoid difficulties like those raised by the Black situation by committing to holding public hearings on all future judicial nominations (New York Times 1937a).
The Judiciary Committee responded to these pressures, agreeing just two years later to hold open public hearings on the nomination of Felix Frankfurter. The Chair of the Judiciary Committee explicitly tied the decision to hold an open public hearing on the Frankfurter nomination to the Black debacle. “[I]n view of criticism of the Senate's speedy confirmation” of Justice Black, the Chair declared that the nomination of Felix Frankfurter would be “scrutinized thoroughly” before being approved by the Committee (New York Times 1939). At least one committee member, speaking at the opening of the Frankfurter hearing, tied this development to the desires for greater transparency and public input into the confirmation process. “[T]his is supposed to be a democratic form of government, and with respect to filling an office of great importance, if any citizens in good faith desire to be heard, I feel that it is our duty to hear them” (Frankfurter Transcript, opening statement by Senator King (D‐UT) at 1. Source: Mersky and Jacobstein Reference Mersky and Jacobstein1977).
Thus, the Judiciary Committee's impetus for holding public hearings was driven at least in part by the need to legitimize its actions to the public (Hall and Taylor Reference Hall and Taylor1996; Pierson Reference Pierson2000). The public, including investigative journalists, would now have a chance to observe the goings on in Judiciary Committee hearings and consequently put more direct electoral and interest group pressure on senators to support or oppose candidates to the high Court. In short, the Committee appears to have initiated the practice of holding public hearings as a means to help define and express its identity as a valid part of the democratic process (Hall and Taylor Reference Hall and Taylor1996, 949).Footnote 5
The Advent of Unrestricted Nominee Testimony
In 1939, Felix Frankfurter became the first Supreme Court nominee to take virtually unrestricted questions in an open, transcribed hearing (Ringhand and Collins Reference Ringhand and Collins2011).Footnote 6 The next nominees to testify at the Committee hearings were Robert Jackson in 1941 and John Harlan in 1955. During this period (1939–1955), nine other nominations were referred to the Committee; at none of these hearings did the nominees testify (Rutkus and Bearden Reference Rutkus and Bearden2009).
It was not until 1955 that nominee testimony became customary.Footnote 7 We posit that nominee testimony became the norm in 1955 for two interrelated reasons. First, this era marked the period in which the Court's salience in the US political system grew. Indeed, the modern era of the Supreme Court is typically identified as beginning in 1953 with the advent of the Warren Court (Segal and Spaeth Reference Segal and Spaeth1993; Pacelle, Curry, and Marshall Reference Pacelle, Curry and Marshall2011), and it was in this era that the Court's involvement in highly salient civil rights and liberties policies increased in scope and visibility (McCloskey Reference McCloskey1965). For example, the Warren Court handed down a higher percentage of decisions per term that appeared on the front page of the New York Times than its predecessor, the Vinson Court, as well as subsequent Courts (Epstein and Segal Reference Epstein and Segal2000, 74–75). Moreover, many of these decisions were met with political resistance, including congressional efforts to overturn them and limit the power of the Court (Nagel Reference Nagel1965), further elevating the Court into the national spotlight. Second, in 1954 the Court decided Brown v. Board of Education, and found itself at the forefront of US political debate. Given this, it should be no surprise that senators in this era were especially interested in examining nominees on their positions on that decision and the proper role of the Court in the political system (Yalof Reference Yalof2008; Farganis and Wedeking Reference Farganis and Wedeking2011; Collins and Ringhand Reference Collins and Ringhand2013). In short, the Court's newfound prominence in US political debate likely motivated senators to examine potential members of the Court more rigorously, which was furthered by initiating the custom of nominee testimony.
The move to open testimony thus appears to have been made for primarily instrumental reasons. By compelling nominees to take unrestricted questions in public and under oath, Committee members both gather information about the type of justice the nominee is likely to be, and enjoy an opportunity to enhance their reelection prospects. This occurs in at least three ways. First, regularized nominee testimony provides Committee members with the ability to examine nominees on issues that may factor into their decisions to support or oppose a nominee, such as a nominee's positions on the pressing issues of the day and, more subtlety, the nominee's relative commitment to different legal doctrines and precedents (Collins and Ringhand Reference Collins and Ringhand2013; Farganis and Wedeking Reference Farganis and Wedeking2014). Pressing the nominees on these issues gives the senators a forum to argue that certain decisions (most recently labeled “super precedents”) should be considered settled and thus off the constitutional table. Seeing how nominees respond to such arguments, in public and under oath, provides unique information to the senators (Gerhardt Reference Gerhardt2006). Because the hearings take place in public during this era, senators’ constituents also are able to follow the hearings, either directly or as mediated by interest groups and the media, thereby increasing the likelihood that senators will obtain better information about what their relevant constituencies think of the nominee (Farganis and Wedeking Reference Farganis and Wedeking2014).
Second, due to the public nature of the hearings, Committee members can utilize their allotted time to take positions, credit claim, and advertise (Mayhew Reference Mayhew1974). Thus, even if a Committee member goes into the hearing knowing how he or she is going to vote on the nomination, the question and answer session still provides instrumental benefits (Watson and Stookey Reference Watson and Stookey1988). In position taking, Committee members can use the question and answer session to stake out their positions not just on the nominee, but also on other salient issues. By credit claiming, Committee members can highlight particular policies they want to advance, and demonstrate to their constituents that they are fulfilling their representational duties by relaying their constituents’ concerns to potential members of the Supreme Court (Collins and Ringhand Reference Collins and Ringhand2013). In addition, the substantial media attention devoted to confirmation hearings provides excellent opportunities for senators to advertise by increasing their visibility and appearance of importance through media coverage of the hearings, as well as through the issuance of press releases and other promotional materials highlighting the senators’ advocacy.
Examples of position taking and credit claiming abound. Senatorial position taking on highly salient issues is a routine part of the hearings. For instance, consider Senator Ervin's (D‐NC) comment at the Stewart hearing:
I think the Brown v. Board of Education was a most unfortunate decision from the standpoint of law, Constitutional law, in the United States. … [T]he Court said that it couldn't turn the clock back to 1868 when the Amendment was ratified or even to 1896 when Plessy v. Ferguson was decided, and yet since Constitutional provisions are to be interpreted to ascertain and give effect to the intention of the people who drew them and approved them, that is exactly what the Supreme Court should have done. They should have turned the clock back to 1868 when the Amendment was ratified. (Stewart Transcript, questioning by Senator Ervin (D‐NC) at 124. Source: Mersky and Jacobstein Reference Mersky and Jacobstein1977)
More recently, Senator Kohl (D‐WI) took the opportunity at Samuel Alito's confirmation hearing to position take: “In my view, one of the most important pieces of social legislation enacted in the last two decades was the Family and Medical Leave Act in 1993” (Alito Transcript, questioning by Senator Kohl (D‐WI) at 384. Source: US Senate 2012). Similarly, Senator Leahy (D‐VT) used the hearing of Elena Kagan to take a position important to his constituents: “Two years ago, in the District of Columbia v. Heller, the Supreme Court held the Second Amendment guarantees to an American's individual right to keep and bear arms. I'm—I'm a gun‐owner, as are many people in Vermont, and I agreed with the Heller decision” (Kagan Transcript, questioning by Senator Leahy (D‐VT) at 6. Source: Washington Post 2010a).
Credit claiming also is a frequent occurrence at the hearings. Two examples from Ruth Bader Ginsburg's hearing illustrate how Committee members credit claim at the hearings:
Senator Kennedy: As someone who is a sponsor of that Fair Housing Act, along with others on this committee, I was struck by the appreciation that you showed in your opinion for the need for private enforcement actions against this kind in discrimination. (Ginsburg Transcript, questioning by Senator Kennedy (D‐MA) at 139. Source: US Senate 2012)
Senator Pressler: In the 1970's, when I was a member of the House, I was quoted by the Supreme Court, albeit in a footnote, because they wanted some legislative history. I had helped the Sioux Tribes by working for legislation that allowed them to go back into court enabling them to file suit in the Court of Claims for compensation for the Black Hills of South Dakota. (Ginsburg Transcript, questioning by Senator Pressler (R‐SD) at 237. Source: US Senate 2012)
Likewise, since Supreme Court confirmation hearings are highly salient events, the appearance of senators at the hearings raises their profile in the public eye, allowing them to advertise. There is strong evidence that the public pays attention to the hearings (Gimpel and Wolpert Reference Gimpel and Wolpert1996; Gibson and Caldeira Reference Gibson and Caldeira2009, 71). For example, Farganis and Wedeking (Reference Farganis and Wedeking2014, 100) report that millions of Americans tuned into live coverage of the Sotomayor hearing, and many more obtained information about the hearings from television newscasts and newspapers as the hearings are featured broadly throughout the media (Bybee Reference Bybee2011). Still another source of information about the hearings comes from interest groups, who use the hearings in their advertising efforts. For example, Vining (Reference Vining2011) reveals that ten organizations reached millions of Americans in dozens of e‐mail messages timed to coincide with the Roberts and Alito hearings. Moreover, Judiciary Committee members also promote their involvement in confirmation hearings on their Web pages, indicating that they are eager for their constituents to see and appreciate their role in the process.Footnote 8
Changes in the Nature and Content of Confirmation Dialogue
To examine the second type of change seen in the confirmation process—the changing nature and content of confirmation dialogue—we rely on an original database of confirmation hearing discourse. This dataset contains information on every Supreme Court nominee who took unrestricted questions before the Judiciary Committee from 1939–2010 and is based on the transcripts of the hearings.Footnote 9 The unit of analysis in the database is the change of speaker, meaning that a new observation begins whenever the speaker changes (e.g., from senator to nominee). We coded a host of variables for each statement, including the senator asking the question, the senator's political party, whether or not the question or comment involved the discussion of a judicial decision, and the issue and subissue areas involved in each statement. To code the issue and subissue variables, we relied on the categories used in the Policy Agendas Project (Baumgartner and Jones Reference Baumgartner and Jones2013), with the addition of several hearing‐specific issue areas.Footnote 10 Intercoder agreement tests reveal that the data are very reliable.Footnote 11
For senators to use the hearings to improve the quality of the information available to them, nominee testimony must provide senators with substantive answers to their questions. Though some accounts of the hearings have asserted that nominees rarely say anything of value (Reynolds Reference Reynolds1992; Yalof Reference Yalof2008), more recent studies show that nominee evasiveness is infrequent, and that there has been no decrease in nominee candor over time. For example, Farganis and Wedeking (Reference Farganis and Wedeking2011, 540–42) demonstrate that the vast majority of answers provided by nominees from 1955–2010 were “fully forthcoming” and that there has been no steep decline in nominee candor since the 1980s (see also Wedeking and Farganis Reference Wedeking and Dion2010; Farganis and Wedeking Reference Farganis and Wedeking2014). Similarly, Collins and Ringhand (Reference Collins and Ringhand2013) find that nominees testifying from 1939–2010 outright refused to answer senators’ questions less than 5 percent of the time and that there was no increase in nominee evasiveness over time.
Thus, it is clear that senators are capable of using the hearings to extract meaningful answers from the nominees. The reminder of this section explores how those answers have changed over time, in ways that promote both the senators’ legitimating and instrumental goals. Grounding analysis in data derived from the original dataset described above allows us to show more clearly both the nature of these changes and how they were likely influenced by both endogenous and exogenous factors.
Increase in the Number of Confirmation Comments
We begin our investigation into changes in the Committee's scrutiny of nominees by examining the number of comments made at each hearing, which is reported in Figure 1.Footnote 12 Nominees appear along the x‐axis, while the total number of statements made at each hearing constitutes the y‐axis. As this figure makes evident, there was a relatively steady increase in hearing discourse during the first five decades of hearings, a sharp increase in the mid‐1980s, then a period of relative stabilization that continues to this day. During the 1930s and 1940s, an average of 129 comments were made at each hearing. This increased to 409 in the 1950s and about 560 in the 1960s and 1970s. There was a large increase in hearing dialogue in the 1980s, with an average of 1,640 comments per hearing, followed by a period of stabilization. In the 1990s, the average number of hearing comments was 1,569, while the average for the 2000s was 1,934.Footnote 13 Thus, insofar as the number of comments at each hearing “signals the degree of inspection applied to each potential judge” (Dancey, Nelson, and Ringsmuth Reference Dancey, Nelson and Ringsmuth2011, 129), it is clear that the Judiciary Committee has substantially increased its scrutiny of Supreme Court nominees over time.Footnote 14
Figure 1. The Number of Comments Made at Supreme Court Confirmation Hearings, 1939–2010
Below, we investigate in greater detail how the expanded scope of the hearings contributed to the increase in the number of comments made at the hearings into the 1980s. Here we explain the increase in the quantity of hearing dialogue in the 1980s. This development correlates with the introduction of gavel‐to‐gavel television coverage of the hearings. In 1981, C‐SPAN first televised the hearings, and coverage was expanded to public television in 1986 and to CNN and other cable networks in 1987 (Comiskey Reference Comiskey1999, 33; Farganis and Wedeking Reference Farganis and Wedeking2011, 531). In the decade preceding O'Connor's 1981 appearance before the Committee, an average of 664 statements were made at the hearings. During the O'Connor hearing, 868 statements were made. Post‐O'Connor, on average, 1,779 comments were made at the hearings.Footnote 15
Thus, although O'Connor's was the first televised hearing, the most significant increase in hearing dialogue began with the subsequent hearing—that of William Rehnquist in 1986 for the Chief Justice position. It therefore appears that the O'Connor hearing taught Committee members that the expanded broadcast of the hearings provided senators increased opportunities to use them in new ways. Even though it was unlikely that most Americans would tune into the hearings for hours on end, broadcasting the hearings provided the public with the option of watching portions of the hearings live or catching recaps on nightly news.Footnote 16 As a result, for the first time, Americans could watch and listen to Committee members probe nominees on the salient issues of the day.Footnote 17 Senators seemed to have recognized that televising the hearings provided them with a wider audience and an enhanced ability to use the hearings as an opportunity to take public positions, claim credit, and advertise (see also Yalof Reference Yalof2008). Consequently, televising the hearings contributed to the increased scrutiny of Supreme Court nominees, which promoted the ability of Committee members to pursue electoral goals.Footnote 18
Changes in the Content of Hearing Discourse
This increased scrutiny, moreover, is substantive, not superficial. It is due to a reduction in nonsubstantive dialogue, combined with increased attention to judicial decisions and an expansion in the scope of issues discussed at the hearings. As we show below, the hearings were initially quite short and often chummy affairs. In the late‐1960s through the mid‐1970s, they turned into more serious discussions as Committee members began examining nominees on their views of judicial decisions and increased the breadth of their questions. Perhaps more than anything else, these developments helped define the unique role, and unique value, of the Judiciary Committee, enabling senators both to enhance the legitimacy of the hearings and to pursue instrumental goals, while further differentiating the Committee from other actors in the confirmation process.
Although Supreme Court confirmations have long been subject to political conflicts (Epstein and Segal Reference Epstein and Segal2005; Abraham Reference Abraham2008), prior to Thurgood Marshall's appearance before the Committee in 1967, the hearings at which the nominees themselves appeared tended to be brief and were usually nonconfrontational (Yalof Reference Yalof2008).Footnote 19 From 1939–1965, an average of only 260 comments were made at the hearings. From Marshall to O'Connor, this increased to 1,074 statements per hearing (and to 1,778 in the post‐O'Connor era). Importantly, the qualitative content of hearing discourse during this time period changed in three notable ways. First, senators moved away from devoting a substantial amount of their “questions” to expressing their admiration for the nominees and engaging in nonsubstantive dialogue. For example, at Charles Whittaker's hearing in 1957, more than a third of questions involved basic background information, such as where the nominee was born, went to school, and his family status. Senator Watkins (R‐UT) went as far as to praise Whittaker for his persistency for having ridden a pony to and from school each day. Likewise, during the hearing of Byron White in 1962, a full third of the hearing was devoted to the senators gushing about White's athletic prowess (he was a former professional football player). While it was not uncommon for Committee members to express their esteem for later nominees and engage them in congenial questioning, the senators no longer devote such substantial portions of the hearings to doing so.
Instead, a large proportion of hearing inquiries today are dedicated to examining nominees on their perspectives on particular judicial decisions, the second notable development we identify. Figure 2 illustrates this by reporting the number of comments at each hearing involving judicial decisions.Footnote 20 Discussions of precedent were rare at the earliest hearings: an average of only twelve comments at hearings prior to 1967 involved questioning nominees on judicial decisions and precedents were never broached at three hearings, those of Jackson, Brennan, and White. Beginning with Marshall's appearance, however, debates about precedent became a mainstay at the hearings: from 1967–2010, an average of 291 comments implicated the nominees’ views of judicial decisions. Though there is some notable variability in this figure, with modest attention devoted to precedent at the Burger hearing in 1969 and those held in the 1970s, the Marshall hearing nonetheless ushered in a new age in hearing content (Batta et al. Reference Batta, Collins, Miles and Ringhand2012).
Figure 2. The Number of Comments Made at Supreme Court Confirmation Hearings Devoted to Judicial Decisions, 1939–2010
In Marshall's hearing, much of this discussion involved southern senators questioning Marshall on his opinions of Warren Court decisions, such as Escobedo v. Illinois (1964) and Miranda v. Arizona (1966), that they saw as an overreach of the Supreme Court's authority.Footnote 21 Thus, the growing salience of the Court in the 1950s, which contributed to the move to unrestricted public testimony, was also reflected in later hearings that involved the senators interrogating nominees on Warren Court precedents. In subsequent hearings, precedent‐based questioning continued as senators grew comfortable with using the hearings not just to query nominees on the pressing constitutional questions of the day, but to do so in the specific language of the Court's own precedents.
The third change in the content of hearing dialogue we explore involves the range of issues discussed at the hearings. This information appears in Figure 3, which reports the total number of unique issues addressed at each hearing based on the thirty‐nine categories discussed in footnote ten. This figure reveals a rather steady increase in terms of the diversity of hearing discourse over time. With the exceptions of Fortas (1968) and Stewart (1959), all the hearings prior to 1975 involved the discussion of less than ten issues. From 1975–2010, an average of seventeen issues were addressed at each hearing. Thus, the Stevens hearing marked a change in the substance of the hearings, as is evidenced by the sharp increase in the number of issues discussed at each hearing beginning in 1975. As Ringhand and Collins (Reference Ringhand and Collins2011) demonstrate, much of the change in the focus of hearing dialogue involved increased attention to issues that gained particular salience beginning in the 1960s and 1970s, most notably racial and gender discrimination. It is apparent that the senators responded to the expansion of the political community to include minorities and women by investigating nominees’ positions on issues salient to these groups. This finding is consistent with Cameron, Kastellec, and Park's (Reference Cameron, Kastellec and Park2013) evidence that, beginning in the 1970s, senators’ support for nominees began to be influenced by a wider range of issues than in the past. Thus, not only are contemporary senators asking about a wider range of issues, but these diverse topics also are influencing their voting behavior.
Figure 3. The Number of Unique Issues Addressed at Supreme Court Confirmation Hearings, 1939–2010
We attribute the three changes identified above to both fostering the legitimacy of the hearings and enhancing the ability of Committee members to pursue instrumental goals. Transitioning the hearings from chummy affairs among friends to forums in which nominees are pressed on their views on Supreme Court precedent and salient legal and political issues promoted the social acceptance of the hearings to an expanding citizenry. It did this by helping to establish the hearings as important democratic checks on the makeup of the Supreme Court. While many early nominees were able to win confirmation by currying favor with senatorial “insiders,” for later nominees the hearings are a moment of democratic reckoning. Responding to the concerns of an expanding electorate, nominees today are expected to provide their perspectives on a wide range of significant issues and affirm the existing constitutional consensus before taking their seats on the high Court (Collins and Ringhand Reference Collins and Ringhand2013). Thus, the transformation of the content of hearing dialogue helped establish the hearings as having a unique and significant role in the Supreme Court confirmation process.
At the same time, these changes allowed Committee members to pursue instrumental goals. First, the growing substance and gravity of nominee questioning better enabled senators to make informed choices as to whether to support or oppose a nominee's candidacy for the Court. Second, the move away from devoting significant attention to nonsubstantive questioning to primarily debating salient legal and political issues, including the Court's precedents, provided a high‐profile forum for Committee members to engage in position taking and advertising on issues that are important to their constituents (a role that was made even more visible after the hearings were televised in 1981). Finally, diversifying the range of topics discussed at the hearings increased the opportunities for senators to claim credit for their own contributions to the development of the policies debated at the hearings.
Equalizing Questioning
The final institutional development we explore involves the equalization of nominee questioning between Committee members of both parties. Figure 4 reports the percentage of comments made by majority party senators. During the first four decades of hearings, there was substantial imbalance in the number of statements made by majority and minority party senators. From 1939–1975, Democrats, who were in control of the Judiciary Committee, contributed 75 percent of all hearing dialogue. Beginning with the O'Connor hearing, however, dialogue evened out. From 1981–2010, questions made by majority party senators accounted for 53 percent of all hearing dialogue. Thus, the past three decades of hearings have been defined by a move toward equality in nominee questioning (see also Farganis and Wedeking Reference Farganis and Wedeking2011), as is evidenced by the decrease in the percentage of majority party comments since the 1970s.
Figure 4. The Percentage of Comments Made by Majority Party Senators at Supreme Court Confirmation Hearings, 1939–2010
Differences in questioning based on partisanship are, of course, partly attributable to the makeup of the Committee. As would be expected, during periods of Democratic control of the Committee, Democratic senators have more members and tend to ask more questions. As the size of the majority party's dominance in the Senate decreased over time, more minority party members joined the Committee, resulting in an equalization of questioning. Thus, the move toward equity in questioning is due in part to changes in the distribution of committee assignments in the Senate. As Sinclair (Reference Sinclair1988) notes, the 1980s marked a period in which committee assignments were distributed more evenly between the Democratic and Republican parties as senators took up more committee positions. As it pertains to the Judiciary Committee, a consequence of this is that we would expect to see less one‐party dominance of the hearings beginning in the 1980s, which is borne out in Figure 4.
We concur with Sinclair (Reference Sinclair1988) that increased equity in Committee assignments between the political parties, a consequence of which was the equalization of hearing questioning, was pursued for primarily instrumental reasons. Distributing committee assignments more evenly allowed senators from both parties to take advantage of the benefits that can accrue from their participation in confirmation hearings. Namely, a wider range of senators were enabled to engage nominees, allowing them to make better informed choices regarding their confirmation votes and use the hearings to position take, credit claim, and advertise.
Conclusions
The most frequently told narrative of institutional change regarding the confirmation hearings held by the Senate Judiciary Committee has been one of a relatively static process that has changed (for the worse) only relatively recently and in response to a few high‐profile events, such as the failed 1987 hearing of Robert Bork or the increase in political polarization seen in recent decades (Carter Reference Carter1994; Eisgruber Reference Eisgruber2007; Dworkin Reference Dworkin2009). In this article, we have rebutted that view by presenting a comprehensive analysis of the institutionalization of the Senate Judiciary Committee hearings of Supreme Court nominees.Footnote 22 As we have illustrated, the process has been marked by incremental and multifaceted change. What began as a largely nondescript committee with only limited input into the fate of Supreme Court nominees developed into a highly visible institution that plays a starring role in the confirmation process.
We further explored the likely reasons behind these changes, demonstrating that both legitimating and instrumental factors contributed to the evolution of the Committee's role. For example, the Committee responded to public outrage about its handling of the Black nomination with the legitimacy‐enhancing move of beginning to hold open, public hearings in 1939. Other developments, however, occurred for primarily instrumental reasons, such as the increase in hearing dialogue that occurred in the mid‐1980s following the inaugural television broadcast of the hearings in 1981. Senators took advantage of the opportunity television coverage provided to use the hearings to communicate with their constituents, thereby increasing their opportunities to credit claim, position take, and advertise. Still other changes were motivated by both legitimizing and instrumental factors, such as the evolution of the content of hearing discourse in the 1960s and 1970s.
While we have framed our analysis of the institutionalization of Supreme Court confirmation hearings in terms of how developments promoted the legitimacy of the hearings and members’ instrumental goals, this article also sheds light on whether endogenous or exogenous factors shape institutional change (March and Olsen Reference March and Olsen1984). We believe three changes are best viewed as being primarily motivated by exogenous events. First, public indignation at the Committee's handling of the Black nomination accelerated the opening up of the process and the regularization of nominee testimony. Second, the introduction of live television coverage of the hearings contributed to the increase in senatorial questioning. Third, the equalization of questioning between members of both political parties is due principally to broader changes in the Senate as a whole, including the weakening grasp of the Democratic Party and the more equitable distribution of committee assignments. The proximate cause of other changes we have identified, such as the alterations in the content of hearing discourse, appear to have both endogenous and exogenous roots. For example, while senators themselves increased the breadth and substance of their questioning to promote instrumental goals, they did so in part to demonstrate they were responsive to the concerns of an expanding electorate.
This research corroborates the utility of viewing institutional development from both legitimating and instrumental perspectives (Hall and Taylor Reference Hall and Taylor1996; Pierson Reference Pierson2000). As institutions evolve, they establish norms that help them carve out their identities as legitimate parts of the governing system. In the process, actors are able to utilize these changes to advance their own goals. Thus, studying institutional change enhances our understanding of both the political system at large and the behavior of actors in that system.
Appendix
Throughout the article, we identified several specific events that we posit triggered the hearing developments corresponding to Figures 1-4. To ensure that these events had a statistically significant influence on the dependent variables appearing in these figures, below we report the results of statistical models that allow us to capture the events of interest, while controlling for other factors. Importantly, each of these models corroborates the explanations for the changes to the hearings provided in the article.
Appendix Table 1 is a Poisson model of the number of comments made at the confirmation hearings. We employ a Poisson model in Appendix Tables 1, 2, 3, and 4, since each of the dependent variables is a count that does not exhibit overdispersion. Six independent variables are included in this model. Year of Hearing captures the year the hearing was held. Post‐O'Connor is a dichotomous variable, scored 0 for hearings held from 1939–1981 and 1 for hearings held from 1986–2010. Bork is a binary variable, scored 0 for hearings held from 1939–1986 and 1 for hearings held from 1987–2010. This allows us to evaluate whether the increase in hearing dialogue occurred immediately after the O'Connor hearing, as discussed in footnote fifteen. We also include an Ideological Extremism variable that is intended to serve as a proxy for the contentiousness of the nominee. Our expectation is that ideologically extreme nominees will receive more scrutiny from the Committee, evidenced by longer hearings. To operationalize Ideological Extremism, we rely on the Segal and Cover (Reference Segal and Cover1989) scores, which provide ideological estimates for Supreme Court nominees based on newspaper editorials printed between their nomination and Senate confirmation.Footnote 23 These scores range from 0 to 1, with higher values indicating more liberal ideologies. To measure the ideological extremism of each nominee, we took the absolute value of the nominee's Segal and Cover score after subtracting 0.5 from each score. Consequently, higher scores indicate more ideologically extreme nominees. To assess whether divided government leads to longer hearings, we include a Divided Government variable, scored 1 if the party in control of the Senate differs from that of the president who appointed the nominee and 0 otherwise. Finally, we include a Committee Size variable, which represents the number of senators who questioned the nominee at the confirmation hearings. We expect that the number of comments made at the hearings will increase in response to the number of questioning senators.
Appendix Table 1 corroborates our assertion that the increase in hearing dialogue immediately followed the O'Connor hearing. Specifically, it illustrates that the increase in hearing discussion is attributable primarily to Rehnquist's Chief Justice hearing in 1986 (the first post‐O'Connor hearing) as the coefficient associated with the Post‐O'Connor variable is more than 50 percent larger than the coefficient associated with the Bork variable. A statistical test of the equality of coefficients indicates that this difference is statistically significant (χ2=24.8, p<0.001). This figure also reveals that the number of comments made at the hearings increases for ideologically extreme nominees and during conditions of divided government. Moreover, the number of senators questioning nominees is positively related to the amount of hearing dialogue.
Appendix Table 2 is the alternative specification of the Poisson model of the number of comments made at the confirmation hearings discussed in footnote eighteen. In it, we include all of the variables appearing in Appendix Table 1, with two exceptions. First, in place of the Year of Hearing variable, we include a Polarization variable that captures the difference between the Democratic and Republican Party Senate means based on first dimension DW‐NOMINATE scores (Poole Reference Poole2013). Second, we remove the Bork variable from the model. Note that we do not simultaneously include the Polarization variable and the Year of Hearing and Bork variables owing to multicollinearity: Polarization and Year of Hearing are correlated at 0.97 and Polarization and Bork are correlated at 0.75. Including all three variables in the model simultaneously results in an average variance inflation factor of 13.12. This table reveals that even after controlling for the level of polarization in the Senate, the Post‐O'Connor variable continues to exert a strong influence on the number of comments made at the confirmation hearings, further corroborating the conclusions drawn in the article.
Appendix Table 3 is a Poisson model of the number of comments made at the confirmation hearings involving judicial decisions. This model includes the Year of Hearing, Ideological Extremism, Divided Government, and Committee Size variables, as well as a Marshall variable, scored 0 for hearings held before 1967 and 1 for those held from 1967–2010. In addition, we include a Judge variable, scored 1 for nominees who held positions as judges before their nomination and 0 for nominees without such experience. Because judges have a case record from which senators can draw their questions (Williams and Baum Reference Williams and Baum2006), we believe they will receive more questions regarding judicial decisions.
Appendix Table 3 reveals that all of these variables shape the number of comments made at the confirmation hearings devoted specifically to the discussion of judicial decisions. Most importantly, it corroborates our assertion that the Marshall hearing ushered in a new era of hearing discourse. In addition, the discussion of judicial decisions increases for nominees who previously held judgeships, those who are ideologically extreme, and during periods of divided government. However, attention to judicial decisions decreases as the size of the number of questioning senators grows.
Appendix Table 4 is a Poisson model of the number of unique issue areas addressed at the hearings. Again we include the Year of Hearing, Ideological Extremism, Divided Government, and Committee Size variables. In addition, we include a Stevens variable, scored 0 for hearings held before 1975 and 1 for those held from 1975–2010. This table reveals that the only variable that contributed to the increase in the number of issues discussed at the hearings is the Stevens variable, thus corroborating our claim that the mid‐1970s marked an increase in the breath of issues discussed at the hearings.
Appendix Table 5 is a Tobit model of the percentage of statements made by members of the majority party. We use a Tobit model since the dependent variable is censored between 0 and 100. This model includes the Year of Hearing, Divided Government, and Committee Size variables, in addition to a Post‐1970s variable, scored 0 for hearings held before 1981 and 1 for those held from 1981–2010. This table reveals that the Post‐1970s variable is the only variable in the model that contributes to the equalization of questioning between members of both political parties on the Committee. This supports our claim that reforms relating to committee assignments and the weakening of the Democratic Party's majority in this era contributed to the equalization of hearing questioning.
APPENDIX TABLE 1. Poisson Model of the Number of Comments Made at Supreme Court Confirmation Hearings, 1939–2010
| Variable | Coefficient |
|---|---|
| Year of Hearing | 0.004*** |
| (0.001) | |
| Post‐O'Connor | 0.666*** |
| (0.028) | |
| Bork | 0.431*** |
| (0.027) | |
| Ideological Extremism | 1.460*** |
| (0.051) | |
| Divided Government | 0.343*** |
| (0.014) | |
| Committee Size | 0.060*** |
| (0.003) | |
| Constant | −2.333 |
| (1.965) | |
| Pseudo‐R 2 | 0.69 |
| N | 31 |
Numbers in parentheses are standard errors.
*** p<0.05 (one‐tailed tests).
APPENDIX TABLE 2. Poisson Model of the Number of Comments Made at Supreme Court Confirmation Hearings, 1939–2010
| Variable | Coefficient |
|---|---|
| Polarization | 0.858*** |
| (.104) | |
| Post‐O'Connor | 0.992*** |
| (0.019) | |
| Ideological Extremism | 1.040*** |
| (0.044) | |
| Divided Government | 0.453*** |
| (0.014) | |
| Committee Size | 0.066*** |
| (0.003) | |
| Constant | 4.376*** |
| (0.049) | |
| Pseudo‐R 2 | 0.67 |
| N | 31 |
Numbers in parentheses are standard errors.
*** p<0.05 (one‐tailed tests).
APPENDIX TABLE 3. Poisson Model of the Number of Comments Made at Supreme Court Confirmation Hearings Devoted to Judicial Decisions, 1939–2010
| Variable | Coefficient |
|---|---|
| Year of Hearing | 0.050*** |
| (0.001) | |
| Marshall | 1.958*** |
| (0.102) | |
| Judge | 0.816*** |
| (0.048) | |
| Ideological Extremism | 1.106*** |
| (0.101) | |
| Divided Government | 0.215*** |
| (0.030) | |
| Committee Size | −0.094*** |
| (0.007) | |
| Constant | −93.282*** |
| (2.910) | |
| Pseudo‐R 2 | 0.61 |
| N | 31 |
Numbers in parentheses are standard errors.
*** p<0.05 (one‐tailed tests).
APPENDIX TABLE 4. Poisson Model of the Number of Unique Issues Addressed at Supreme Court Confirmation Hearings, 1939–2010
| Variable | Coefficient |
|---|---|
| Year of Hearing | 0.009 |
| (0.007) | |
| Stevens | 0.511*** |
| (0.208) | |
| Ideological Extremism | −0.469 |
| (0.384) | |
| Divided Government | 0.084 |
| (0.123) | |
| Committee Size | 0.025 |
| (0.027) | |
| Constant | −15.538 |
| (13.745) | |
| Pseudo‐R 2 | 0.35 |
| N | 31 |
Numbers in parentheses are standard errors.
*** p<0.05 (one‐tailed tests).
APPENDIX TABLE 5. Tobit Model of the Percentage of Comments Made by Majority Party Senators at Supreme Court Confirmation Hearings, 1939–2010
| Variable | Coefficient |
|---|---|
| Year of Hearing | −0.109 |
| (0.249) | |
| Post‐1970s | −14.724*** |
| (8.383) | |
| Divided Government | 6.607 |
| (4.476) | |
| Committee Size | −0.390 |
| (0.856) | |
| Constant | 291.010 |
| (484.295) | |
| McKelvey and Zavoina R 2 | 0.51 |
| N | 32 |
Numbers in parentheses are standard errors.
*** p<0.05 (one‐tailed tests).
