Six Ways to Fix the Supreme Court Confirmation Process

Seven years ago, in a study of the Senate’s constitutional mandate to provide “advice and consent” in the selection of Supreme Court justices, the University of Chicago’s Geoffrey Stone wrote that the process was “chaotic, divisive, arbitrary, dishonest, insulting, polarizing, and damaging to the public’s confidence in both the Senate and the judiciary.” The worst was yet to come.

Although Americans disagree strongly on Brett Kavanaugh’s fitness to serve, there’s no doubt that his path to confirmation was an embarrassment for the Senate. The recent hearings will be remembered for the virtually complete breakdown of competent, credible inquiry: severe limitations on the number of witnesses, rounds of questioning limited to five minutes per senator, an outside counsel restricted in the same fashion and then effectively relieved of her duties midday. Perhaps most disturbing was the absence of any agreement among senators about the relevance of the hearing to their duty to “advise and consent” on the nomination. Some committee members seemed to think that their responsibility was to establish burdens of proof and to define the appropriate measure of due process in a law-type adjudication of conflicting claims. Others argued for considering the testimony and investigative record more broadly in judging the nominee’s fitness for a seat on the Supreme Court.

Right now the Judiciary Committee rules are spare, and the majority decides procedure on an ad hoc and largely unilateral basis. But given the Senate’s very public failure in the Kavanaugh case, it is not out of the question that at some point the majority and minority might cooperate in adopting new rules for conducting investigations. Each party appreciates, after all, that it will not always maintain majority control. Better systems will protect the interests of each at least some of the time.

Here are some ideas for reform:

• Outcries about “11th hour” allegations suggest that the Senate should not have to address—and that it would be unfair for the nominee to have to answer—late-breaking claims. But the real problem is the absence of a clear, mutually agreed upon process within the Judiciary Committee for handling complaints whenever they arise. The committee should have a system for the prompt registration of complaints or tips and for the protection of anonymity. That system should include expedited procedures for the investigation of 11th- hour allegations.
• The committee rules should provide for the appointment of a special counsel, on a bipartisan basis, in the event of any significant question of fitness requiring investigation. If within a specified period—shortened for issues arising late in the process—the majority and minority are unable to agree on a counsel, the rules should default to the requirement of an independent FBI review.
• The independent counsel or the FBI, not the party in power, should set the scope of the investigation. And if the majority tries to narrow that scope, it should have to submit its proposals to a public vote by the full committee.
• A hearing is not the venue for fact-finding; it is an occasion for facts previously developed to be set forth, aired, and tested, and for the nominee to defend his or her position. But the rules should establish a minimum for the number of rounds of questioning and clearly define the role of any outside counsel. They should also set the terms for calling witnesses, conferring specific rights on the minority to request testimony. If bipartisan agreement on the witness list cannot be reached, and the majority seeks to limit the number of witnesses or even rule out specific ones entirely, this decision—again—should be subject to a full public committee vote.
• The burden of proof rests on all presidential nominees, regardless of the position for which they are nominated. In the case of judicial nominees in particular, there has never been, nor is there today, any presumption of fitness to serve on our federal courts, and there is no basis for adopting burdens imported from criminal or civil legal procedure. The Judiciary Committee should clarify that standards such as “beyond a reasonable doubt” or “a preponderance of the evidence” are irrelevant to the judgments required of senators in discharging their constitutional responsibility to advise and consent.
• The rules must provide for some public accounting of the factual record. Investigative summaries with appropriate redactions to protect legitimate privacy interests may be sufficient. But the Senate cannot defend a procedure like the last one, in which legislators marched in and out of a secure facility and dropped conflicting hints about the significance of a record to which the public was denied all access.

The Senate might well ignore the institutional costs to both that body and the Supreme Court inflicted by its handling of the Kavanaugh episode. It might well decline to consider written reforms of its rules. But that would be a shame. Change is long overdue.