JACKI LYDEN, Host:
The next president could have the chance to appoint three or even more Supreme Court justices. Through the years confirmation hearings have drawn major scrutiny from Congress and from the public. But just how well the justices' actions match up to what they said they'd do before the job.
That's the question addressed in a new review published in the journal Constitutional Commentary. The review focused on the Court, led by William Rehnquist, from 1994 to 2005. I spoke with Lori Ringhand this week. She's one of the three researchers on the project.
LORI RINGHAND: We were trying to ascertain what types of questions, if any, actually generated predictive answers. Answers, in other words, which would help should how the nominees were going to vote once they were actually confirmed. And what we were trying to tease out was which types of questions, whether those were general questions about judicial philosophies or the more specific questions, which of those types of questions generated better answers.
LYDEN: And which did?
RINGHAND: Well, clearly the more specific questions. What we found is when nominees were asked questions about their judicial philosophy generally or broadly speaking their approach to constitutional interpretation, what we got in response to that type of question was very abstracted or general or non- distinct answers.
When asked about originalism, for example, nominees gave answers that all sound more or less the same. When asked specific questions about the rights of criminal defendants, the answers were still not extremely predictive to their future voting patterns but they were closer. Clearly the more specific the question the better the answer and the better quality response the senators received.
LYDEN: As an example, Lori Ringhand suggested we go back to the confirmation hearings of Clarence Thomas. Hank Brown, then a Republican senator from Colorado, asked about Thomas's position on stare decisis. That's the judicial doctrine that says that judges should give deferens to existing decisions on the same point. In other words, they should follow precedent. Here's how that sounded at the Thomas hearing back in 1991.
HANK BROWN: From 1810 through 1953, we had a total of 88 cases that were overruled. That's 88 cases in 143 years. Interestingly, I think in the next 37 years we had 112 cases overruled. I mention all of this because I wish you would share your view with us as to the kind of standards you're going to use in sitting on the Court as to whether or not you'll choose to overrule a previous decision of the Court.
CLARENCE THOMAS: Senator, I think that the principle of Stare Decisis is an important link in our system. We've got to have continuity if there's going to be any reliance, if there's going to be any chain in our case law.
LYDEN: So, to my ears that would have seemed predictive that Clarence Thomas's philosophy was to adhere to precedent. Was it?
RINGHAND: I think that's certainly the impression that was left in the hearings. Thomas was perceived based on this statement has having a great deal of respect for precedent. When we compared that to a subsequent voting record it turns out that of the justices we were looking at, Justice Thomas voted more often than any of the others to turn over precedent.
LYDEN: Is just a case of the judges refining their philosophies over time or do you see it as actually a pattern of deceit?
RINGHAND: I don't think people are being deliberately deceitful. The act of judgment requires that a judge have an open mind. And certain details and arguments matter. So it would be inappropriate for a judge to promise to the Senate that he's going to decide a particular line of case a particular way.
So it's not an effort to be dishonest, I don't think. I think it's an effort to balance a fine line. But the pendulum has swung too far in favor of not pushing the nominees. I think the Senate can ask better questions than they do. These abstracted questions don't generate distinguishing answers.
LYDEN: You've been suggesting, Lori Ringhand, that the Senate ask different kinds of questions. What are you referring to generally?
RINGHAND: Right. Well, first of all, the one thing that the Senate clearly could do is ask the nominees how they would analyze prior decided Supreme Court cases. Obviously sitting Supreme Court justices have told us their opinions of those cases. We know, for example, how Justice Scalia and Justice Ginsberg are likely to vote in abortion cases.
Nominees would be adding nothing different than what those sitting justices have already provided by giving us their opinion. What they thought was well argued, what they thought was weakly argued.
LYDEN: Lori Ringhand is an associate professor at the University of Kentucky's School of Law. She and two other researchers contributed to a study about how the records of the Supreme Court justices match up to what they said during their confirmation hearings.
Ms. Ringhand, thank you very much for joining us.
RINGHAND: Thank you very much.
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