By: Stuart Chinn*
Abstract
Supreme Court justices has been persistent since at least the failed confirmation of Robert Bork in 1987. But, the breadth and depth of concerns about the process have only grown more intense since 2016, with the appointment of four new justices during the first Trump and Biden presidencies. Indeed, an examination of comments from Democratic and Republican senators in recent Supreme Court confirmation debates reveals a notable point of seeming unanimity amongst them: nearly all appear to agree that facets of the process are deeply problematic and suffer from significant flaws. And while the next several Supreme Court appointments may prompt marginally more or less intense partisan fighting compared to recent episodes—depending primarily upon whether a given vacancy might lead to major ideological shifts on the Court—it seems unlikely that these trends will change in any meaningful way for the foreseeable future.
The starting point of inquiry in this paper is to explore the rhetoric of senators during the confirmation debates of the four newest justices appointed after Trump’s election to the presidency in 2016. If there is indeed near-unanimity among senators in recent years that the Supreme Court appointments process is problematic in various ways, what precisely do Democratic and Republican senators identify as the points of concern in these debates?
In Parts I-IV, I highlight some recurring themes. These critiques in the Senate debates can be grouped under at least four common concerns. Identifying and fleshing out these four argumentative themes constitutes the first core claim of this paper. They are, in turn: (1) arguments emphasizing majoritarian will; (2) arguments emphasizing Senate institutional norms and practices; (3) arguments prioritizing legal or judicial legitimacy; and (4) arguments on the civil or fair treatment of nominees. In Part V, I offer some tentative support for the idea that these arguments have enduring relevance across other confirmation debates by briefly discussing the nomination of Robert Bork to the Supreme Court.
In Part VI, I shift gears to assess these modalities of argument more systemically. One key aspect of these modalities concerns the audiences they are directed to. In particular, I argue that some of these modalities can be more effectively deployed than others to generate interest from larger, broader audiences in a given confirmation debate. Other modalities seem more oriented toward appealing to expert or elite audiences. Understanding this distinction and recognizing the significance of when senators deploy different modalities of argument thus suggests some recurring patterns in how judicial political fights are conducted. This is the second core claim of the Article.
Finally, in Part VII, I turn my attention to the present and the immediate future. If one had the goal of enhancing the alignment of the Supreme Court appointments process and public expectations of it, what does the preceding discussion imply regarding potential changes to the appointments process that would be most valuable? Ultimately, my third core claim is that the Supreme Court confirmation process would best be served by, at present, whatever combination of reforms would result in a shrinking of the conflicts encompassed within it. Accordingly, one implication of my argument is a skepticism of long-running suggestions that Supreme Court nominees should discuss their constitutional views more broadly and forthrightly during the confirmation process. Such a step, especially in the present political context, would only be counter-productive; it would very likely heighten the stakes and significance of a given Supreme Court nomination and thereby heighten both the expectations and the level of acrimony around the process.
*Frank Nash Professor of Law, University of Oregon School of Law. Copyright © 2024 Stuart L. Chinn.