If you think U.S. Supreme Court nominees have become much more evasive in recent years during their confirmation hearings, Dion Farganis, an Elon University assistant professor of political science, offers a bit of advice: Think again. Work by Farganis received national attention this week as the Senate Judiciary Committee opened hearings into Elena Kagan’s nomination to the highest court in the land.
In a new paper Farganis co-authored with Justin Wedeking at the University of Kentucky, the duo examined more than 10,000 exchanges between court nominees and the Senate Judiciary Committee dating to John M. Harlan’s nomination in 1955.
The team concluded that the conventional wisdom – “namely the idea that nominees have become markedly more evasive since the late 1980s” – should be reconsidered. In fact, there have been “ebbs and flows” in the percentage of questions that nominees address in a straightforward manner, despite the perception that recalcitrance is on the rise in the wake of the failed Robert Bork nomination in 1987.
Their findings have been reported this week in the New York Times and Congressional Quarterly.
“I think most folks have assumed that the older hearings, back in the 50s and 60s and 70s, were more revealing, more candid, and they just haven’t gone back and read the transcripts,” Farganis said. “If these had been televised from the beginning, the reaction to it would be that these have never been transparent or substantive exchanges.”
What explains the idea that evasiveness is worse today than ever before? By analyzing the types of questions asked of nominees, Farganis and Wedeking found that senators have moved away from questions of fact – What law school did you attend? Where have you worked? What were the details of this case? – and more toward questions of views.
For example: How would you rule in this situation? What is your approach to judging and Constitutional interpretation? Do you agree with the Court’s ruling in this particular case? Nominees have always been less direct when answering questions of views, often responding to senators that they can’t, or won’t, address topics that may soon be before the court.
Television plays a role as well. Since the hearings have been broadcast, starting in the early 1980s with Sandra Day O’Connor, senators have used the hearings as an opportunity to restate their own political beliefs or challenge nominees as a way to market themselves to constituents back home.
That partially explains the move toward more questions of view, the authors state in their research. And as the number of probing questions increases, nominees have grown more explicit when choosing not to respond – even though they still directly answer anywhere from 60 to 70 percent of questions, without condition or caveats.
“One of the things that surprised us was that, on balance, the nominees do answer a lot of questions,” Farganis said. “It’s not as bad as people think. Not only has there not been a drop off, the nominees are doing OK.
“It’s an important moment for the country to have what at least appears to be a transparent moment, some level of accountability. The court is unelected, and this is the only chance the country gets to at least indirectly have a say as to who takes these important jobs. Even if it’s just symbolic, there’s still value. It gives a connection between the public and the justices.”
Farganis is joining the Department of Political Science and Public Administration this fall as an American government and constitutional law expert. He earned his doctorate and master’s degree in political science from the University of Minnesota and his undergraduate degree from Vassar College.
He most recently taught at Bowling Green State University in Ohio.
Prior to earning his graduate degrees, Farganis worked at a New York City law firm writing legal briefs on behalf of clients with disabilities who needed government benefits.