Are Supreme Court Confirmation Hearings Getting Longer?

BY Jason M. Breslow  July 1, 2010 at 11:55 AM EST

Elena Kagan is done with her testimony before the the Senate Judiciary Committee. After three days of long questions and longer statements, the solicitor general can watch the rest of her confirmation hearing for the U.S. Supreme Court from home (or skip it).

Jokes about lengthy hearings aside, these events are in fact getting longer, and more thorough. Two professors who’ve studied the process, Dion Farganis of Elon University and Justin Wedeking of the University of Kentucky, compiled and reviewed every question asked of high court nominees since John Marshall Harlan went before the Senate in 1955.

“We find that senators ask more probing questions than in the past,” they write in a recent paper, “and that nominees are now more explicit when they refuse to respond–two factors that may be fueling the perception that evasiveness has increased in recent years.”

We asked Wedeking to explain his methodology over e-mail. An edited version of that conversation is below the fold:

First, explain what defines an exchange. How do you count how many exchanges a nominee has with the Judiciary Committee?

An exchange is defined as a question from a senator and its corresponding answer from the nominee. To count exchanges, in most situations, this meant a single question and a single response from a nominee.

The vast majority of exchanges were very easy to count. On occasion, we included multiple back-and-forths within a single exchange, such as when the nominee and senator were clearly talking over each other or at the same time, or if the senator added some clarifying remark after the nominee began the answer. Also, note that exchanges can include comments from senators that elicited responses from nominees, even if they were not phrased in the form of a question.

Thus, based on how we define an exchange, our data will not be the same as the raw number of comments uttered by senators or nominees.

The trend seems be toward more questions and longer hearings. Is that a correct reading? What’s driving that trend?

Yes, we strongly agree that the trend is towards longer questions and longer hearings. That trend is very clear in the data.

We don’t study that specifically in our paper (we document it as one of the changing dynamics of these hearings), but with our findings we can speculate there are a number of possible causes, some of them are not mutually exclusive. I’ll list some of these below along with a brief explanation:

  • Television: The hearings were first televised with O’Connor and have been ever since. This gives senators more opportunities to ask questions and “score points” with their constituents watching back home. It also lets the public follow along in “real time” rather than read about it in the news paper. This effect is enhanced in the current hearings when combined with the use of e-mail/Facebook/Twitter that people can send a message almost instantaneously to their senators.
  • Changing Senate rules: The early hearings were very unbalanced in terms of partisan exchanges, with them being dominated by one party or the other. Not until the mid 1980s do we see things balance out. With this balancing out, a norm appeared that was evidenced by both sides (majority party and minority party) receiving relatively equal time. Thus, for each additional senator that gets to question at the hearings, then a senator from the other party gets time.
  • Growing size of the judiciary committee/participation of committee members: In the early years, the size of the committee (or those that participated) was relatively small compared to post 1980 hearings. For example, Senator Sam Ervin was a very dominant figure in early hearings, asking 335 of the 569 exchanges directed at Thurgood Marshall. This unbalance would be unheard of in today’s era.
  • Senators are more likely to ask about a nominee’s views, rather than ask “factual” type questions: When questions focus on views, we find that nominees are less likely to be “very forthcoming” in their responses. In fact, they are more likely to qualify their response, refuse to answer on some grounds, or simply give what we call a “non-answer,” where they will talk at length about what the law might be in a certain area, but not answer the question of the senator. When answers are qualified or “dodged,” we find that senators are more likely to keep asking those viewpoint questions. Thus, based on this, we find a small-downward decline in the candor of nominees, though we also find some decline in candor during earlier periods of the hearings (so it is not entirely a new phenomenon).
  • Growing importance of “ideology” in Senate confirmation voting: There is a finding in the literature that when Senators vote on a nomination, one of the major driving factors is the ideological distance between the nominee and the senator. For example, the closer the nominee to a senator ideologically, the stronger the likelihood of that senator voting in favor of the nominee (and vice versa). Thus, to extract ideological information from the nominee, which they find valuable, they would need to ask more questions of the nominee.

Have recent nominees been more controversial than those of a generation ago? Or has the Senate changed in how it handles them?

  • There are some good points to support the claim that both the Senate and the nominees have changed, though, on average, the nominees have probably not been more controversial.
  • First, we noted above that some of the Senate is changing how it handles them in terms of rules, time allotment, participation and sharing.
  • Second, the senators are changing the types of questions (asking more for a nominees views and less for on facts).
  • Third, nominees are also changing in their reasons for being evasive. In addition to a slight decline in the level of their candor, when nominees do not give an answer we consider “fully forthcoming,” we find that the reason they give for not answering fully has also shifted over time. Nominees are increasingly likely to reply that the issue or case is potentially coming before the court, or will be before the court in the future. On the other hand, nominees since the early 1980s are less likely to cite concerns about judicial independence. This could be contributing to the perception that nominees are less forthcoming.
  • Fourth, there are two nominees that were above the average in the number of exchanges and that appeared to catch many Americans eyes — Bork and Thomas.