Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue

Denis Steven Rutkus
Specialist on the Federal Judiciary

In recent decades a recurring Senate issue has been what kinds of questions are appropriate for Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether, or to what extent, questions by committee members should seek out a nominee's personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues.

This issue might be of particular relevance to the Senate Judiciary Committee as it prepares for the scheduled start, on June 28, 2010, of confirmation hearings for Supreme Court nominee Elena Kagan. For the nominee herself once contended, in a 1995 book review, that a Supreme Court confirmation hearing should focus not on "the objective qualifications or personal morality of the nominee" but on the nominee's "substantive views." Such aims, she wrote approvingly, were achieved by the committee in the 1987 confirmation hearings for Supreme Court nominee Robert H. Bork. The Bork hearings, she said, presented to the public "a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." By contrast, "subsequent hearings," she wrote, "have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Also in her 1995 article, Ms. Kagan said that what "must guide" a decision on whether to confirm a person to be a Justice is a Senator's "vision of the Court and an understanding of the way a nominee would influence its behavior." Further, she said, if questioning on "substantive positions ever were to become the norm, the nominees lacking a publication record would have no automatic advantage over a highly prolific author." She emphasized, however, that she was not arguing "that the President and the Senate may ask, and a nominee must answer, any question whatsoever." Some kinds of questions, she said "do pose a threat to the integrity of the judiciary"—for example, if a Senator "asked a nominee to commit herself to voting a certain way on a case that the court had accepted for argument."

In 2009, in testimony before the Judiciary Committee, as nominee to be Solicitor General, Ms. Kagan appeared to signal somewhat of a change in the views she expressed in 1995. In reply to a Senator's question at the 2009 hearings, Ms. Kagan stated that, while the Senate, when questioning a nominee, "has to get the information that it needs," the "nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests."

This report also examines four recent Supreme Court confirmation hearings and provides excerpts of Senators asking, and nominees responding to, questions. It reveals a usual practice of nominees declining to respond to committee questions seeking their views about current legal or constitutional issues. Notable in this regard were the 1993 Supreme Court confirmation hearings for nominee Ruth Bader Ginsburg. In her opening statement to the Judiciary Committee, Judge Ginsburg articulated a limit on what the Senators could expect their questioning to elicit from her, stating she would be constrained, when responding to questions, from providing any "previews," "hints," or "forecasts" of how she as a Justice might cast her vote on issues coming before the Court: these limits subsequently came to be known informally as the "Ginsburg Rule," standing for the principle—invoked frequently by later Court nominees—that nominees should not, in replying to questions from Judiciary Committee members, disclose their personal views or opinions on issues if there were a possibility the issues in the future would come before the Court.


Date of Report: June 23, 2010
Number of Pages: 29
Order Number: R41300
Price: $29.95

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