This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate whether questioning patterns differ depending on the race or gender of the nominee.
Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.
These findings, and the dataset introduced in the article, make an unprecedented contribution to legal and political science scholarship regarding the confirmation process: the comprehensive type of data presented here has simply never before been available to scholars working in this field. The paper also provides a much needed empirical foundation for the emerging body of positive constitutional theory being developed by constitutional law scholars such as Barry Friedman, Larry Kramer and Neil Siegel. For the first time, these scholars can ground their theoretical work about courts, democracy and public opinion in solid data regarding one of the most important ways – the confirmation process - in which public opinion is translated over time into constitutional law.
- Supreme Court,
- Senate Judiciary Committee,
- confirmation hearings,
- confirmation process
Available at: http://works.bepress.com/lori_ringhand/1/