THE SATURDAY ESSAY

What We Learn From Supreme Court Confirmation Hearings

The questioning of would-be justices isn’t just political theater. It often reveals crucial differences in judicial philosophy. What will Brett Kavanaugh reveal?

By Jeffrey Rosen

July 13, 2018 10:45 a.m. ET

As the country prepares for what are likely to be some of the most polarizing Supreme Court confirmation hearings since the nomination of Robert Bork in 1987, the one thing that Republicans and Democrats share is a tendency to dismiss the hearings themselves as a form of political theater devoid of substance—a “Kabuki dance,” as then-Senator Joe Biden once put it. In 1995, law professor Elena Kagan, who would be confirmed as a justice 15 years later, neatly summarized this consensus, dismissing all of the post-Bork hearings as a “vapid and hollow charade.”

But the consensus isn’t entirely accurate. Of course, in every hearing since 1987, Senators have asked gotcha questions and nominees have given evasive answers. But once you cut through the political noise, every one of the hearings has also served an important educational function. Constitutional law can’t be reduced to simple politics, and not all judicial conservatives and judicial liberals are the same. For those who have been paying attention, the hearings have revealed the differences among the judicial philosophies of the various nominees with remarkable precision.

‘The 1987 Robert Bork hearings set in motion a series of forces that polarized the Supreme Court confirmation process and the country, mobilizing an army of judicial interest groups on both sides.’

The end of the Senate filibuster for judicial nominees means that Judge Brett Kavanaugh’s nomination by President Donald Trump can likely be pushed through on a party-line vote. That makes it all the more important to use the coming hearings as a way to educate all Americans, including Judge Kavanaugh’s supporters and opponents, about what kind of judicial conservative he would be if confirmed to the Supreme Court.

For most of American history, Supreme Court hearings rarely focused on judicial philosophy. The first extended public hearings were held in 1916, on the hotly contested nomination of Louis Brandeis who, following custom, refused to testify in person. The first time a nominee testified under oath in fully public hearings was in 1939, when Felix Frankfurter appeared before the Senate to answer charges of disloyalty for his civil libertarian sympathies. The first hearings to focus extensively on a nominee’s judicial philosophy were Bork’s, when then-Senator Biden declared the right of the Senate to accept or reject the nominee based not on his qualifications but on his approach to interpreting the Constitution.

The Bork hearings set in motion a series of forces that polarized the Supreme Court confirmation process and the country, mobilizing an army of judicial interest groups on both sides. But the hearings were useful in clarifying the difference between the judicial philosophies of Bork and Anthony Kennedy, who was nominated in his wake. Bork insisted that the Constitution should be interpreted in light of the original understanding of its framers and ratifiers, and he argued that judges should refuse to enforce rights that are not explicitly enumerated in the Constitution.

After the Senate’s rejection of Bork, Anthony Kennedy clearly telegraphed his very different approach when questioned by the Senate Judiciary Committee. “The concept of liberty in the [Constitution’s] due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage,” he said, signaling his commitment to uphold the core of the Court’s abortion decision in Roe v. Wade.

When asked what standards judges should use to determine which private consensual activities are protected by the Constitution, he replied: “A very abbreviated list of the considerations are the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.”

This statement anticipated his most influential (and controversial) statement as a justice, in his 1992 decision upholding abortion rights: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It also anticipated the language that he used in his 2015 majority decision upholding the right to same-sex marriage.

The 1987 hearings revealed that while Bork embraced a jurisprudence of original meaning, Kennedy was open to invoking the kind of wide-ranging moral reasoning more often favored by judicial liberals. Since then, confirmation hearings have illuminated which method of constitutional interpretation the nominees embrace, and also how much their views are shaped by commitments to precedent and how they see the role of the Court in our constitutional system.

In 1993, when Ruth Bader Ginsburg was nominated, some feminist groups objected to her statement the previous year that Roe v. Wade had been decided too broadly and should have emphasized women’s equality rather than the right to privacy. “Change in our society is incremental,” she reiterated in her hearings. “Real change, enduring change, happens one step at a time.”

On the Court, Justice Ginsburg has focused on incremental changes to existing precedents, just as she promised. In 1996, for example, she persuaded a nearly unanimous Court to enact her view of gender discrimination into law in a case holding that the Virginia Military Institute had to accept female cadets. In doing so, she was able to ratchet up slightly the standard used by the Court for evaluating distinctions based on gender, requiring “skeptical scrutiny” of any official action that denied rights or opportunities based on sex.

Justices Stephen Breyer and Elena Kagan have been pragmatists on the Court, as anyone who watched their confirmation hearings would have predicted. In 1994, Senator Orrin Hatch accurately said that then-Judge Breyer embraced “a pragmatic, nonideological vision of the law.” In 2010, Senator Chuck Schumer highlighted the fact that then-Solicitor General Kagan had won the respect of her conservative colleagues at Harvard Law School with her “pragmatism and moderation.” As she declared during her hearings, in an effort to reach across the aisle, “In a sense, we are all originalists.”

On the Court, Justices Breyer and Kagan have often sided with their liberal colleagues, but they also have found common ground with Chief Justice John Roberts and the Court’s conservative majority. This past term, in cases striking down a federal ban on sports gambling and upholding a baker’s right to refuse to make a wedding cake for a gay couple, they joined 7-2 decisions that were based not on sweeping constitutional principles but on relatively narrow technical grounds.

The liberal justice who stands in clearest opposition to this pragmatic approach is Sonia Sotomayor. As she made clear in her confirmation hearings, she believes fervently that the Constitution protects certain fundamental rights against infringement by the government, from the right to equality to the right to vote. Justice Sotomayor has expressed this view in a series of principled and searing dissents to rulings of the Roberts Court, highlighting the impact of the Trump administration’s travel ban on religious minorities and the barriers to racial minorities posed by Ohio’s motor-voter law.

Among the conservatives on the Court, the justice whose philosophy most resembles that of Justices Kagan and Breyer is Chief Justice Roberts, who combines conservative pragmatism with a focus on constitutional structure and the Supreme Court’s institutional legitimacy.

‘However inflamed the politics become, citizens can use the hearings to educate themselves about how liberal and conservative justices, at their best, reason together about American history and fundamental law.’

The most illuminating takeaway from then-Judge Roberts’s confirmation hearings was his belief that, in order to maintain the nonpartisan legitimacy of the Court, a chief justice should try to persuade his colleagues to reach agreement on narrow opinions and to avoid broad rulings on divisive constitutional disputes. “The bedrock principle of legitimacy in the American system for courts,” he said, “is that any authority to interpret…the Constitution derives from the obligation to decide a particular case or controversy.” The Court’s basic role, he believes, is to resolve the disputes that come to it, not to set out far-reaching and contested general principles.

When asked how he would avoid 5-4 decisions along partisan lines, Judge Roberts said, “I do think it should be a priority to have an opinion of the court [as a whole].... You don’t, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues.” His concern with the Court’s institutional legitimacy informed his historic—and pragmatic—vote to uphold on narrow grounds President Barack Obama’s Affordable Care Act.

In other cases, Chief Justice Roberts has convinced his colleagues to reach a consensus by deciding cases on narrow grounds. A unanimous decision early in his tenure upheld a law that withheld federal funds from universities for banning military recruitment on campus. In more recent cases, on issues ranging from partisan gerrymandering to affirmative action, the Court under his leadership has managed to produce rulings that avoided the most far-reaching claims made by the contending parties.

If Chief Justice Roberts has emphasized consensus, Justice Clarence Thomas has shown himself to be a principled originalist, as he clearly signaled he would be in his confirmation hearings. Over the years, he has written a series of bold concurrences and dissents setting out his views of the legitimate, original understanding of the Constitution.

In a 1995 case, for example, he suggested that the founding generation would have questioned the constitutionality of the post-New Deal administrative state. And in the Court’s recent ruling to allow the Trump administration’s travel ban, he wrote a concurrence saying that the original understanding of the Constitution did not include the issuing of nationwide injunctions by district courts—the tactic favored by opponents of the ban.

As for the newest justice, Neil Gorsuch, he also emphasized his credentials as an originalist in his confirmation hearings, though he added, “I’m not looking to take us back to quill pens and horses and buggy.” He repeatedly cited a 2012 Supreme Court case in which the justices held that the police could not attach a GPS tracking device to a car and follow a suspect for a month. As he put it, “The Court held that if that’s a trespass to chattels and a search 200 years ago, it has to be today, though the technology is obviously different.”

He further developed this approach in his dissent last month in a case concerning digital privacy rights. Chief Justice Roberts and the four liberal justices held that the police couldn’t seize more than five months of a suspect’s historical cellphone data without a warrant, because most people don’t expect to be ubiquitously tracked in public. Justice Gorsuch didn’t accept their reasoning, but he suggested that he would have been sympathetic to the defendant if he had instead based his argument on a claim of property rights in his cellphone data—a claim more grounded, in Justice Gorsuch’s view, in the Constitution’s original meaning.

Judge Brett Kavanaugh’s hearings in the fall are yet another opportunity to educate the public about the judicial philosophy of a nominee. When President Donald Trump nominated him, the judge declared, “My judicial philosophy is straightforward.” As he put it, “A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

It’s striking that Judge Kavanaugh did not call himself an originalist, and his opinions on the appellate court suggest that he uses less originalist analysis than Justice Thomas or Justice Gorsuch. Instead, Judge Kavanaugh appears to focus on constitutional structure, to ensure that the executive branch and Congress operate within their specified boundaries.

A central focus of the confirmation hearings will be on Judge Kavanaugh’s views about the weight of existing precedent, since the Court may have the opportunity to overturn not only Roe v. Wade but a series of cases in which Justice Kennedy voted with the liberal justices, ranging from same-sex marriage to affirmative action and the death penalty. Although Judge Kavanaugh, like all nominees, pays the obligatory respect to the importance of precedent, it’s worth delving into whether he is willing to overturn precedents that have been repeatedly reaffirmed by justices appointed by presidents of both political parties.

The former judge Michael Luttig, whom President George W. Bush considered for the Supreme Court, has called these “super precedents,” suggesting that even justices who disagree with Roe v. Wade, for example, should consider affirming it because it has become so deeply embedded in the fabric of American law. Does Judge Kavanaugh, like Chief Justice Roberts, consider the institutional legitimacy of the Court to be an important consideration in constitutional interpretation?

By using the Kavanaugh hearings as an opportunity for constitutional education, the Senate Judiciary Committee can perform a real service to the country. The hearings can help citizens to understand that constitutional law cannot be reduced to a series of political questions pitting Republicans against Democrats. Instead, it aspires to be a legal enterprise in which people of good faith can disagree based on constitutional methodologies rather than on political ideologies.

The confirmation hearings are an opportunity for all of us to learn about the range of approaches to interpreting the Constitution. However inflamed the politics become, citizens can use the hearings to educate themselves about how liberal and conservative justices, at their best, reason together about American history and fundamental law. Here’s a chance, above all, for Americans to decide which approach they find most persuasive.

Corrections & Amplifications 
Elena Kagan wrote in 1995 that Supreme Court confirmation hearings were a “vapid and hollow charade.” That was 15 years before her own confirmation hearing. An earlier version of this article incorrectly stated the years. (July 13, 2018)

—Mr. Rosen is the president and chief executive officer of the National Constitution Center in Philadelphia and a law professor at George Washington University. His latest book is “ William Howard Taft ” in the Times Books series on American presidents.

Appeared in the July 14, 2018, print edition as 'JUDICIAL THEATER Schools of Judicial Thought.'