The Senate Judiciary Committee

History and Overview of the Committee Role

Probably no aspect of the nomination and confirmation is less well understood by the public than the role played by the Senate Judiciary Committee. It is only in the past 50 years, since the nomination of John Harlan in 1955, that the process of public hearings before a fully constituted Judiciary Committee in which the nominee testifies was established as the norm. Even so, there was less ceremony and a greater casualness about nominations in this early modern period than we see today. We are not likely to see again hearings of a single day as we did with Whittaker (1957), Stewart (1959), White (1962), Fortas (1965), and Blackmun (1970). Nor are we likely to see the Chair of the Judiciary Committee open hearings with the invitation, "Is there anyone here who desires to testify either in favor or in opposition to this nominee?" as Senator Eastland did in Potter Stewart's hearings. Televised coverage of the hearings, systematically begun with the O'Connor nomination in 1981, has insured no lack of people wanting to testify for and against any nominee.

Myths about the Committee Process

There are a number of misperceptions about confirmation hearings. Among them are these:

1. The Committee consists of senators open-mindedly assessing the testimony of the nominee in order to reach a judgment about confirmation.Citizens unfamiliar with the process are sometimes surprised and disappointed to see that senators may already have made up their minds about whether they are going to support or oppose confirmation. Keep in mind, however, that the senators come to the hearings with substantial knowledge about the nominee and whether he or she seems suitable for the Court, at least in the eyes of that particular senator.
2. The Committee members have already made up their minds about how they will vote. The hearings are just a sham.The opposite mistake is to assume that all members have already decided how they will vote. No doubt some have, most typically those who are supporters of the president's agenda, who already know they will vote to confirm. That is not always the case, however. Opposition to O'Connor came not from the Democrats on the Committee, but conservative members of President Reagan's own party, who had concerns over O'Connor's views on abortion. There may be some who will use the hearings to help them decide how to vote on the nominee.
3. A third misconception is to assume that the hearings make no difference in the outcome of the confirmation vote of the full Senate.One need look back no further to the hearings on Clarence Thomas and previously to Robert Bork to see how important hearings can be. Hearings play a very significant role in continuing to develop and refine the nomination discourse and in serving to guide the full Senate to its conclusion.

Role Playing by Committee Senators

• The Partisan. Senators who have already decided in advance of the hearings to support or to oppose the nominee may choose to use the hearing to advocate in behalf of or in opposition to the nominee. The positive partisan is one who will ask questions designed to make the nominee look good. Perhaps leading with statements that extol the virtues of the nominee, the senator will proceed to ask questions that allow the nominee to get out front on potentially controversial issues while fielding other questions in a style that emphasizes the inherent intelligence, thoughtfulness, fairness, and commitment of the nominee to his or her version of justice. The negative partisan may choose a more direct attack mode, but will certainly ask challenging and confrontational questions that could permit a discerning public to question the suitability of the nominee to serve on the Court.
• The Validator.Some senators could best be described as leaning towards support or opposition regarding confirmation. What they seek in the hearings is confirmation of this predisposition. Consequently, validators tend to ask questions on those issues that stand in the way of a final decision. They also tend to ask questions that probe the mindset of the nominee and give insight to what kind of justice this person will be. Conceivably, the nominee's responses might reveal unanticipated weaknesses or flaws that lead to a change of mind.
• The Advocate. Where confirmation is an acknowledged certainty, senators may decide to use their questioning time in the hearings to advocate certain positions. The target of that advocacy may be the nominee. A most obvious example of this was when Senator Biden told nominee O'Connor,
  

  You are a tremendous asset. You are a woman and the first one on the Court; don't let these folks, me included, run you out of being that. You are a woman; you do stand for something that this country needs very badly. We need spokespersons in positions of high authority. Don't lock yourself in, in this hearing or any other hearing, to do things that you are not proscribed from doing in the canons of ethics. It is your right, if it were your desire, to go out and campaign like the devil for the ERA. It is your right to go out and make speeches across the country about inequality for women, if you believed it. Don't wall yourself out. Your male brethren have not done it. Don't you do it.

  
  Senators with little left to do but accept the inevitable outcome often try to do what they can to influence the thinking of the nominee. It is also the case that some senators may advocate with a different target in mind. Senators who quite support the nominee may use his or her questioning time to target his own constituents, his fellow senators, or the general public by asking questions designed to make the senator look good and to advertise some particular issue championed by the senator.
• The Evaluator. Finally, there is the true evaluator, uncertain how he or she will vote and who seeks to use the hearings to ask about and clarify those issues central to one's decision calculus.

The partisanship score is a measure of how often senators side with one party or the other in those votes where a majority of Democrats opposes a majority of Republicans. Data are from the CQ Weekly December 15, 2008, Party Unity Vote Study. The specific period covered by the votes recorded is 2008. The data are reconfigured to reflect the percentage of time a senator votes with the Democratic majority, in order to make the measure consistent with the direction of scores on the ADA liberalism measure. Consequently, a score of 80 indicates voting with the Democratic majority in 80% of the partisan votes. A score of 15 signifies voting with the Democrats only 15% of the time. It also signifies voting with the Republican majority 85% of the time (100-15=85). A score of 50 indicates voting with the Democrats 50% of time and Republicans 50% of the time.

These two sets of scores tend to run very close to each other and both suggest a considerable potential for ideological battles in judicial nominations, especially when the nominee is seen as possessing strong ideological leanings. Only Arlen Specter, as a Republican, occupies a position that might be considered somewhat moderate, relative to his partisan colleagues. However, the closeness seen here among scores within each party does not translate to common views regarding nominees. The Democratic pair from Wisconsin, Kohl and Feingold, supported the nomination of John Roberts to be Chief Justice, disagreeing with the opposing stance of the other Democatic committee members.

Senator Specter Switches Parties: What This Means

Senator Arlen Specter's switch from the Republican party to the Democratic party is certainly uncommon, but not without precedent. Among current senators, Richard Shelby was first elected to the Senate as a Democrat, unseating Jeremiah Denton, who played a prominent role in Sandra O'Connor's nomination to the Court as a leader of conservative concern regarding her appointment. Shelby subsequently switched to the Republicans in November, 1994, immediately following the mid-term elections. More recently, of course, Joseph Lieberman left the Democratic party in a successful bid to retain his seat in the Senate, having been defeated in the Connecticut primary. Most famous and perhaps pivotal in American politics was the switch of Strom Thurmond in 1964. His switch as a Democrat to a Republican served as a catalyst, urged by Barry Goldwater, to make the Republican party home to conservatives and in so doing prompted liberals and even middle-roaders to leave the party, some for the Democrats, others for an independent status. Arlen Specter's switch is just the latest in this alignment of ideology with party.

Other than Maine's tandem Republicans of Snowe and Collins, Specter has consistently been the least likely to join his Republican colleagues in split party votes. His ADA voting scores have consistently placed him towards the middle of the ideological divide, which makes him relatively liberal for a Republican. Indeed, it may well be the opposition within his own party that provided the impetus for this push. Life in the ideological middle is a real balancing act. Specter's opposition to the confirmation of Robert Bork was balanced by his support of Clarence Thomas, and his position on each of these may well have been pivotal in the rejection of the former and the confirmation of the latter.

This switch has brought little change to the Judiciary Committee. I was initially told by staff on the Judiciary Committee that the Democrats offered Specter no loss of seniority on the Committee, his time having begun in 1981. With the departure from the committee of both Ted Kennedy and Joe Biden, only Chair Patrick Leahy is more senior, having come onto the committee in 1975. The next most senior member among the Democrats is Herbert Kohl, who came on in 1989. However, Specter was in fact moved to the end of the Democratic list, moving up one notch from the bottom when Minnosata's Al Franken came on to the Committee, and Senator Wyden dropped off. The switch also increases the number of Democrats on the committee to 12 and reduces the Republicans from 8 to 7. I initially thought that 12-7 split likely wouldn't hold, that the Republicans would almost surely add another member to the committee. That hasnpt happened and the split currently remains at 12-7.

Specter's move to the Democratic side completes the ideological division on the Judiciary Committee. A committee that once was home to middle-of-the-road Democrats (e.g., Dennis Deconcini and Howell Heflin) and Republicans (Specter) now has only Specter in the middle, and he may well move more left of middle among his new colleagues. The Republicans on the committee reflect the more conservative ideological make-up of the Senate party. With respect to Supreme Court nominations that will be forthcoming, perhaps not much has changed except that we are likely to see a unified Republican minority, which has now lost the moderating counsel that served as their leader. Jeffrey Sessions of Alabama has stepped into the position of ranking minority member, but it is my understanding that Senator Grassley, who is more senior, will move into that position in the next Senate.