The Supreme Court’s new term; a look into the future of confirmation hearings

The Supreme Court’s 2015-16 term began this past Monday. There are several major cases pending that will probably have a major impact on federal law and policy on affirmative action, public employee unions, Obamacare and other matters.

We currently have a Court that includes one justice who is 82 and three others in their late seventies. We had a pope resign, so it would not be so startling to see one or more justices resign. Lifetime appointments, however, sometimes encourage people to hang on to something long after it would make sense to most people to leave.

It seems quite likely that the president elected next year will appoint one or more new justices. So obviously candidates for president will be spending time speaking or answering questions about what kind of nominees they would propose for the Court. Candidates ranging from Hillary Clinton to Mike Huckabee have said that they will impose litmus tests on prospective justices on issues such as campaign finances and same-sex marriages.

The thing is, when it comes to judicial confirmation hearings, no matter what the appointing president says or thinks about the person they nominate, no judicial candidate at a confirmation hearing is likely to ever commit themselves to a particular expectation about how they might vote to decide any issue. If they did they would simply be requiring themselves to recuse themselves when that particular case came before the court.

That being said, it is likely that senators who will be considering the future nominees to the Court will continue to dig up relevant or non-relevant pieces of information that will potentially offer a DNA-like indication of the nominee’s prejudices or tendencies. This is all complicated many-fold at this time and into the future by the exponentially expanded ways to find such information. How relevant that expanded universe of information will be to making decisions about Court nominees will be anybody’s guess.

A George Washington University Law School professor, Orin Kerr, recently looked into the future to see how this might evolve. Here from the Washington Post is the confirmation hearing testimony that he conjured up for a hearing twenty years in the future.

Supreme Court confirmation hearings in 2035

From the transcript:

MONDAY, JUNE 28, 2035 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, Pursuant to notice, at 12:32 p.m., in room SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding.


Senator JONES: Judge Hilman, I want to return to your Twitter feed. As you know, the records of your Twitter account show that on August 3, 2016, at 1:30am, you “favorited” a tweet from the controversial activist Nathan Kepner that said, “I’ve had enough.” Just a week later, Nathan Kepner helped lead a march in Washington, DC, in which he threw a trash can in the direction of a police officer. I’d like to play the video of Kepner throwing the trash can now. [Plays video.] Can you explain what you agreed with in Kepner’s message that you felt comfortable making it your favorite?

Judge HILMAN: Senator Jones, thank you for the question. Just by way of context, I favorited 7,482 tweets in the period I was on Twitter. But more to your point, twenty years later, I have no specific recollection of why I favorited that tweet. I didn’t even follow Kepner.

Senator JONES: So you’re telling me that you made this your favorite, and yet now you have no idea why it was your favorite? Frankly, I find that a little hard to believe. But you mentioned who you “followed” on Twitter, and that brings me to my next question. Records of your Twitter account show that during your time on Twitter, you “followed” Al-Jazeera, the controversial news site that some have accused of being anti-semitic. Can you explain why you are a follower of Al-Jazeera?

Judge HILMAN: Senator Jones, I have no specific recollection of following Al-Jazeera. However, it’s important to realize that in those days, following someone on Twitter just meant that you wanted to see tweets from that account.  It didn’t mean that you agreed with those tweets.

Senator JONES: But you don’t deny that you followed Al-Jazeera, right?

Judge HILMAN: No, Senator, I don’t.

Senator JONES: I see. Perhaps your recollection would be better when it comes to your Facebook account. In the year 2021, you were friends with the constitutional litigator Joanne Felpot, correct?

Judge HILMAN: Senator Jones, I know Ms. Felpot because we clerked together.  I would say I am an acquaintance of Ms. Felpot.  I would not say we are or have been friends.

Senator JONES:  But isn’t it true, Judge Hilman, that you were Facebook friends with Joanne Felpot in the year 2021?

Judge HILMAN:  Yes, it is true that I was a Facebook “friend” of Ms. Felpot. But I did not consider her an actual friend.

Senator JONES: I want to focus on Ms. Felpot’s status update from April 2, 2021, at 11:35 am.  I will read that status update now.  Ms. Felpot: “Great news: We won our Second Amendment case!  Judge Smith granted summary judgment on our favor.  It’s not over, but this is a great victory.”  In response to that status update, you “liked” the update and wrote the following comment: “congrats!”  Judge Hilman, as you know, the members of this committee are deeply interested in your views of the Second Amendment. I want to give you a full opportunity to answer my question: What did you like so much about Judge Smith’s ruling that led you to go out of your way to congratulate your mere acquaintance for it?

Judge HILMAN: I don’t specifically recall that case or writing that comment, although I don’t doubt that I did so.  I would guess that the status update just came up in my feed, for whatever reason, and I just liked it to be polite.  I don’t think I have ever even read Judge Smith’s opinion.

Senator JONES:  Judge Hilman, I find your testimony extraordinary. We have a clear electronic record about your likes, your favorites, who you follow, and who is your friend.  That record shows you directly associating with very controversial figures and enthusiastically urging them on.  It’s right there in the files. But under oath, you claim to have no recollection whatsoever of any of it.  Your memory is just blank. I see my time is up.  But I must say, I find your testimony deeply troubling.