By Mark Owens
Process and procedure have begun to dominate debates about controversial or salient nominations to the federal bench. Frustration emerged when the regular procedures that promoted deliberation became obstacles to consideration. The use of the nuclear option – closing debate with a simple majority vote – for nominations has changed a process that once deferred to the power of an individual senator. If a decline in deliberation continues, where can senators learn more about the nominee? Lacking information, senators may simply assume a nominee to an independent branch has the same policy positions as the President.
Last night, President Donald Trump nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy. Some Senate Democrats have reacted by suggesting every tool will be used to oppose the president’s nominee. One might ask, is this enough? The most recent nomination was reported by the Senate Judiciary Committee along party lines and the nuclear option was used in 2017 to end a filibuster by Senate Democrats over the confirmation of Neil Gorsuch. Until a nominee is chosen and considered by the committee, it is difficult to predict the outcome. For that reason, we should consider additional actions that define the Supreme Court confirmation process from the Senate’s perspective.
A tradition of courtesy meetings between Senators and Supreme Court nominees became normalized after 1970 when other nominees followed Harry Blackmun’s strategy to meet with senators prior to a hearing with the Senate Judiciary Committee. Initially, the personal meetings date back to 1916 when Louis Brandeis answered questions by two senators over a private dinner (Mason 1947, 504). In a recent article in PS: Political Science and Politics I asked: can the norm of courtesy meetings survive alongside the nuclear option?
Office visits are not part of the Senate’s rules, but they traditionally allow elected officials to have a real dialogue with nominees. Senator Angus King (I-ME) described the process as “a slow-motion hearing without the public being able to watch what is going on.” Each meeting helps inform the public through statements crafted by each office to signal why a senator is likely to support or oppose a nominee. Senator Mike Lee (R-UT) explained that he draws questions in a hearing based on “what others have asked.” However, the courtesy meetings depend on the interest of senators to know more about the individual. If the opposition has already made up its mind and the certainty of a confirmation vote appears to be clear, we risk witnessing a decline in the tradition of courtesy visits.
Meetings also give nominees an opportunity to differentiate themselves from the President in advance of receiving the Senate’s consent, which also builds independence for the Court. The exclusive insight, that only a senator can gain, typically motivates senators to host a courtesy meeting. For example, Justice Kagan visited with 75 senators in 2010, Justice Sotomayor visited with 93 senators in 2009, and Justice Alito visited with more than 80 senators in 2005. The politics surrounding the nominations of Judge Garland, Justice Gorsuch, and the current vacancy raise questions as to whether this norm is threatened by polarization.
Figure 1 illustrates the timing of courtesy meetings with Judge Garland in 2016 and Justice Gorsuch in 2017. The darker bars show the count of meetings hosted by Republican senators and the lighter bars represent the total number of meetings. Therefore, the lighter bar stacked on top of the darker bar represents the meetings by Democratic senators. The comparison is meaningful today, because these are the last two nominations that occurred before the nuclear option was set as a precedent for Supreme Court nominations.
Figure 1: Senate Office Visits with Supreme Court Nominees
These meetings provide private and courteous exchanges, while hearings provide broader public scrutiny. One similarity between the two nominations was that the courtesy meetings began with party and committee leaders. Aside from the meeting between Senator McConnell (R-KY) and Neil Gorsuch, Chairman Charles Grassley (R-IA) was the first Republican meeting of both nominees. Early visits were often split between senators on the Senate Judiciary Committee and other offices leading with a bipartisan message. Another was the impact by early statements forecasting the final decision on the nominee (delay or confirmation) on senators’ strategies to host a courtesy meeting.
In 2016, all senators in the minority, except for Bernie Sanders (I-VT) (running for president), met with Merrick Garland. Some Democratic senators even stayed in Washington during a spring recess to meet with the nominee. Garland’s final meeting with a Republican senator was with Orrin Hatch (R-UT), who had a long history of meeting with nominees as a member of the Senate Judiciary Committee. As for 2017, there was a different partisan dynamic. There was an urgency to meet with the new nominee by senators from both parties. Perhaps this was because Chairman Grassley gave an early indication of when the committee’s hearings would begin. However, we did see that Senators Hoeven (R-ND), Inhofe (R-OK), Johnson (R-WI), and Moran (R-KS) waited to meet Nominee Gorsuch at the White House, after the hearings had concluded.
In the past, arguments have suggested the meetings hold little value. For one, the meetings are expected to be private – although Neil Gorsuch’s response regarding President Trump’s rhetoric about the judiciary were shared after his meeting with Senator Blumenthal (D-CT). Also, the meetings are too short to explain the complexities of one’s judicial philosophy. However, the value of these meetings are the venue they provide for senators and nominees to get to know one another and to better inform the quality of questions in the committee hearings that provide greater public scrutiny.
In this time of institutional change in how the Senate considers nominees, a consequence of the nuclear option may be an erosion of the chamber’s traditions. To date, Judiciary Committee Chairman Charles Grassley (R-IA) has scheduled hearings so that senators have the ability to meet one-on-one with the nominee in an informal private setting. For senators up for re-election, like Senator Ted Cruz (R-TX), this can be a moment to advertise leadership and constituent representation in the confirmation process. The Chairman of the Judiciary Committee currently protects the norm of courtesy hearings by determining when to set the date for a confirmation hearing. If partisans push for shorter confirmations, they will limit the available days for courtesy meetings.
Mark Owens is an assistant professor of political science at the University of Texas at Tyler. From 2015-2016 he was an APSA Congressional Fellow in the office of Senator Orrin Hatch (R-UT). His research on the Senate has been published in American Politics Research, Congress & the Presidency, and PS: Political Science and Politics. Follow him on Twitter @markeowens