What We Think About Supreme Court Hearings Is Wrong

The pending battle over President Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court has given birth to a charming myth that we ought to explode. The myth, widely repeated, is that the current era, in which nominees refuse to answer most substantive questions from the Senate Judiciary Committee, is an aberration, a response to what happened when Robert Bork fully engaged the senators in 1987.

But this is wrong. On the contrary, Bork was the aberration in what was by then a long-established practice of declining to respond. And the tradition of declining to answer makes sense given the history. As we can easily forget, confirmation hearings became routine only in the mid-1950s, as a tool to allow segregationists to fulminate against the outcome of Brown v. Board of Education. Before that, no one would have imagined that a candidate for the Supreme Court should testify under oath about how he (always he in those days) would decide actual cases. The nominees of the 1950s and early 1960s, like other sensible people of the era, saw the hearings for the sham they were and essentially refused to dignify the questions with serious answers.