Elena Kagan has spent much the first few days of her Supreme Court confirmation hearings this week mired in meta-questions — questions about the ways in which she answers questions (or, rather, doesn't answer them, in contradiction to her past criticism of nominees who did the exact same thing).
The back-and-forth fits a popular narrative about the confirmation ritual: Robert Bork was too candid for his own good in 1987, and nominee evasiveness has been on the rise ever since. The phenomenon even has a name: "the Ginsburg rule," which recalls the first post-Bork would-be justice to figure out she'd be better off staying mum before the Senate.
According to this logic, nominees today are more reluctant than ever to answer tough questions, senators are more likely than ever to get annoyed by this, and the rest of us watching at home start to wonder why we even hold these hearings in the first place.
The first empirical research on the topic, though, suggests something else: Supreme Court nominees are no more cagey than they've ever been; we just perceive that to be so.
"Rather than a simple story of post-Bork recalcitrance on the part of nominees, our findings reveal a much longer and more nuanced history of ebbs and flows in nominee candor," write political scientists Dion Farganis and Justin Wedeking in their new study "No Hints, No Forecasts, No Previews: Analyzing Supreme Court Nominee Evasiveness, 1955-2009."
Farganis and Wedeking coded the transcripts of every Supreme Court confirmation hearing from John M. Harlan to Sonia Sotomayor, breaking down the dialogue into more than 10,000 question-and-answer exchanges between the nominees and politicians.
They found that while nominees have grown slightly less candid since the 1980s (one of multiple such waves), an empirical measurement of the change fails to support dramatic pronouncements about the "vacuity and farce" of modern hearings (to borrow words Kagan surely now wishes she hadn't used). And the latest trend — to the extent that it exists — actually dates back to Sandra Day O'Connor, not Ruth Bader Ginsburg. O'Connor was confirmed in 1981, before Bork but alongside another, perhaps more revealing event. Her hearings were the first aired on public television.
Farganis and Wedeking suggest that it is not really nominee evasiveness that has evolved over the last two decades but factors that affect our perception of it. Senators are more likely today to ask the type of questions that elicit a slippery response, and nominees are more explicit in their refusal to reply. They increasingly cite the old "Before the Court" excuse, as in "I really can't address any unsettled law, hypothetical scenario, existing case, legal concept or general issue that might come before the court."
Plus, genuinely evasive responses are more likely to occur on, say, questions of civil liberties than questions of inside-baseball judicial doctrine, so they are more or less being cagey exactly on the type of questions an average citizen (or journalist) most pays attention to.
The researchers divided the exchanges into questions of fact and questions of view, the latter more likely to elicit evasive responses. They then categorized the answers as fully/very forthcoming, qualified, not forthcoming, interrupted (a politician didn't let the nominee finish) and "non-answer."
The last category was particularly significant, they note, as a non-answer can represent "an important evasive tactic for nominees." Senators on the judiciary committee are each given a limited allotment for questioning, and a savvy nominee can exploit that clock with long-winded empty talk.
John Roberts, Samuel Alito and Sotomayor each gave non-answers to questions of view at least 10 percent of the time. That statistic also reflects a general increase in questions aimed at nominees' beliefs and attitudes, Farganis and Wedeking write.
It is the nature of the non-answers, though, that may leave the greatest impression on us as outside observers. Much of the specific language does originate with Ginsburg, who reasoned that it was downright inappropriate for a judge to signal how she would approach a case that hadn't yet come before her. Her "rule" has largely been blamed since then for the deterioration of the hearings.
"We think this criticism is quite revealing," the researchers write. "Specifically, we think it is shows that the explicit way in which Ginsburg and those who have appeared after her have declined to answer questions has made a profound impression on those who watch the hearings."
Farganis and Wedeking don't suggest, in conclusion, that the hearings are sufficiently informative, and so we should all stop complaining about them.
"What our study can add to this debate is simply an awareness that if the hearings are 'broken,' they have been that way from the start," they write. "Whether critics find this comforting or distressing remains to be seen."