What is the point of confirmation hearings?
It's definitely not for Senators to ask questions and gather information so they can learn how they should vote.
A lot of people watching or reading about this week’s Senate Judiciary Committee hearings for Supreme Court nominee Ketanji Brown Jackson are shaking their heads in disbelief.1 The entire thing seems like the dumbest exercise in useless political theater imaginable. As Jonathan Bernstein put it yesterday ($):
Democrats, who all intend to vote for her, will talk about how historic the nomination of a Black woman is, how impressive Jackson’s credentials are and how silly Republican objections have been … and then will ask her softball questions.
Republicans on the committee, who all have signaled that they intend to vote against her, will give speeches that have little or nothing to do with the nominee and everything to do with themes the party wants to run on in 2022 and 2024.
Jackson will keep her composure no matter how much she’s provoked, while saying little beyond platitudes, albeit platitudes that will at times be cloaked in the language of the law. She will be well prepared for questions about her record, and her answers will emphasize how mainstream a judge she is in all respects. That’s pretty much what every nominee for seats on the Supreme Court has done for the last 35 years.
Indeed. We almost certainly know the outcome (confirmed). We pretty much know the final Senate vote count (either 50-50, 51-49, or 52-48). What could possible be the purpose of going through the motions of this spectacle?
You don’t ask hearing questions to learn things
One basic thing people get wrong about the purpose of congressional hearings is the idea that they exist to gather information.
Public congressional hearings are a terrible way to gather information. In fact, in all the time I put together appropriations and oversight hearings, or helped members and staff prepare for committee hearings, I don’t think I ever learned a single useful piece of information by holding a hearing.2 Not once.
And that’s because the point of congressional hearings aren’t to gather useful information.
The very structure of a public congressional hearing makes any attempt at actual information gathering, at best, absurdly inefficient. In a 2 hour hearing, maybe you get to personally ask questions for 5 or 10 minutes. In a 12 hour SCOTUS nomination hearing, you get half an hour. A good portion of that time is eaten up by the witness’ responses, which often don’t even answer the question. And even if you did have a serious factual question, a lot of the time the witness honestly doesn’t even know the answer. “We’ll have to get back to you on that.”3
Look, if you want to gather information as a Member of Congress or a committee staffer, there’s no shortage of ways to do it. The easiest and most common way is to pick up the phone and call someone.4 Or send an email. Or hold a private meeting. Or read a report from an IG or GAO or CBO or CRS. Or look at the flood of information being produced by the interest groups, think tanks, academics, lobbyists, and constituents. In fact, one of the best ways to gather information is to pretend you have to have a hearing on the topic; the act of preparing for the hearing forces you to gather relevant information.
When I was a committee staffer on the House Appropriations Legislative Branch Subcommittee, my basic oversight routine was this: I had a weekly check-in call with deputy-level staffers at the agencies I oversaw,5 that I then summarized in a memo for the subcommittee chair; we had a roughly-monthly meeting with the subcommittee chair and each agency head; and then we did phone calls or personal meetings anytime an issue flared up. That’s the kind of oversight I liked—developing relationships with agencies.
On the hearing side, we tended to have something like 1.2 public hearings per agency each year. Every agency had a budget hearing after their budget requests were released in February, and in the fall we’d maybe do an oversight hearing for 1 or 2 agencies, depending what was going on and whether something big came up.
But I promise you, we never held a hearing in order to gather information.
That’d be a complete waste of time. Setting up a congressional hearing takes a lot of legwork. You have to arrange for the witness(es) to be there, you have to secure a room on the Hill,6 you have to get the members there,7 you have to write opening statements for the chair, you need to come up with questions for the witnesses,8 you need to build these stupid briefing books for the members,9 with background material on the relevant issues. You need to brief the chair on the hearing.10 You need to setup the room.11 You need to write the press release for after the hearing.12
That’s a bizarre way to try to gather information. And so nobody does. For every public hearing we held about a given agency, I’d guess we did a dozen private meetings, and hundreds of phone calls. That’s how you learn information. By having a conversation with people, not by grilling them with questions as the five-minute clock counts down in H-144.
Supreme Court nominations are a little different than budget oversight, but not really. Anything a Senator wants to learn about Judge Brown Jackson’s judicial philosophy or past writing or decisions, they can get from any number of sources, including the private meetings that Supreme Court nominees traditionally have with each Senator before the come before the Judiciary Committee.
Public hearings are about the public, not the hearing
Congress holds lots of hearings. There are budget hearings to go over agency requests. There are hearings on issues that might be subject of future legislation. There are oversight hearings on agency administration of programs. There are investigative hearings on varieties of things that have gone wrong, both in the administration and just generally in America. There are nomination hearings on candidate to executive branch positions and to the judiciary.
All of these hearings have one thing in common: the Members want them to be public. The public nature of the hearing is the core feature of the activity, and everything about the hearing is geared to that end.
So why do Members want to have a public hearing?
I think there are four reasons to have a public congressional hearing.
First, to yell at someone in public. This is a pretty classic oversight technique. People don’t like getting yelled at in public, and so the looming threat of a public tongue lashing is a decent tool for keeping agency administrators in line with congressional intent as they run their programs and agencies. It also allows the Members to publicly act, be seen by their constituents as publicly acting, and maybe change policy.13
Second, to get someone to promise you something in public. This was my favorite use of oversight hearings. Just bring in an agency head, and get them to say publicly that they’ll do something they had been somewhat reluctant to do, or that they told you privately they would do but had been dragging their feet on.14
Third, to take a public position on a topic in the context of action. This might be the core function of the hearing for most members. And it’s why the typical 5-minute question period at the hearings is often four and a half minutes of question and 30 seconds of witness answer. The Members aren’t trying to learn answers. They are trying to take stances.
Again, if a pandemic is ravaging the country, individual Members of Congress don’t have a ton of agency to pass legislation or even move administration policy. But they do have a lot of ways to signal their position on the issues. One of the best is to be on camera telling the head of the CDC what he’s doing well and what he’s not doing well.15 If there’s a core truism of the congressional hearing, it’s this: the witness are props, the Members are the stars of the show.
Finally, and perhaps most importantly, if you talk to any committee staffer about why they are having a public hearing, they’ll pretty quickly tell you that the purpose is to “build a public record.” In fact, you hear that so much down on the Hill that people start to take it for granted, without ever really defining it.
What the heck is “building a public record”
When you “build a public record” in a committee hearing, what you are trying to do is shape future political action and future political assessments. In a hearing about potential legislation, you are trying to build media coverage, raise public awareness, compel stakeholder or public official interest, and/or signal your intention to commit resources.
This is all done in order to affect future political action by others: to build your coalition of support, or maybe convince opponents to back down, or to try to put the issue onto the policy agenda of congressional leaders, force intervening action in the executive branch or private sphere, or setup issues for an election. Or all of the above. Ditto with an oversight or investigative hearing.
Even more importantly, you build a public record so that you shape the public understanding of what you are doing. Actions taken by public officials don’t occur in a vacuum: they occur in the public sphere. How the public comes to understand those actions has enormous political ramifications: for the parties, for individual members, and for public policy.
An action that would be controversial absent an explanation can become a good and reasonable thing to do; likewise, an action that would not be controversial can become a rash and dangerous thing. All depending on how the public comes to understand the action.
At it’s political core, the Judiciary committee confirmation hearing of Judge Brown Jackson isn’t about whether or not the Senate should confirm her to the Supreme Court. That’s pretty much been decided—the Senate will confirm her nomination.16 What is at stake in the hearing is the public understanding of what that confirmation means. You can’t think of a court confirmation as a black or white, confirm or reject. What is still up in the air is the ultimate public meaning of these events. That’s the fight.17
And it’s not meaningless theater. If the collective understanding of the confirmation swings from “partisans rammed through an extremist judge to bend the court” to “partisans tried to block a qualified nominee,” public policy going forward will be different. Whatever version of the confirmation becomes the public understanding, it could influence the midterm elections, swinging marginal seats in November and shaping citizen understanding of the parties and future policy disputes.
Actors might also be thinking defensively, hoping to insulate their actions from the wrath of an angry public. In that sense, you can think of all this as a fight over what the costs of the nomination will be. Democrats want to minimize the public costs of confirmation; The GOP want to maximize the cost. And turning public opinion is the best way to minimize/maximize those future costs.
For the Dems, that means even deciding to have a hearing. There’s no requirement to hold public confirmation hearings to the Court; for a long time, the Senate didn’t do it. But the parties choose to do it now because the costs of not doing it are large. Not only does the public expect it—what are they afraid a hearing will bring out?—but also because the hearing allows the party to put the nomination in the best possible light, giving them a chance to shape the public understanding while attention is high. It’s true that you have to expose the nominee to cross-examination from hostile partisans, but it’s obvious that both parties think there’s a net benefit.
Conversely, Republicans are seeking to present the best case that Judge Brown Jackson doesn’t belong on the court, both to justify voting against her and to diminish the standing of the Democrats. This is why Senator Graham yesterday harped on Brown Jackson’s defense of Gitmo detainees, why Senator Cruz concentrated on Critical Race Theory, and why Senator Hawley obsessed over the child pornography sentences Judge Brown Jackson handed down.
And this isn’t limited to the parties. Individual Senators have lots of incentives to use the hearings to shape the public understanding of themselves as future political actors. It’s no secret that many of the loudest voices in confirmation hearings are Senators who have ideas about running for president. How you handle yourself in a partisan confirmation battle can almost directly affect your national profile, your future fundraising, and the assessment of you made by elites and party primary voters.
Also, importantly, the public understanding of the hearings could change public perceptions of the Court's legitimacy. If the confirmation becomes seen as nakedly partisan and illegitimate, or Judge Brown Jackson becomes seen as a thoroughly partisan and not objective judge, the conservative court majority might be emboldened, knowing that one of the (presumably) liberal members of the court is going to have their dissents more likely dismissed by the public. Or the political backlash following the confirmation may be bigger. Obviously, the converse of these things are true as well; if the public understanding of the nomination becomes the Dem-preferred argument, then the election, public policy, and court legitimacy will have different meanings going forward.
And so the goals of the parties in this process isn't to try to change the minds of Senators (though Republicans would surely like that); it's to win the public understanding. Democrats want this to have all the trappings and appearances of an obviously qualified judge going through a totally normal process; many Republicans want this to be understood as the installation a dangerous extremist judge that represents a party out of touch with the public.
And those goals can, in theory, be achieved without changing any Senators mind.
Now, would the Democrats love to get 70 votes for Brown Jackson? Of course. Seventy votes would send a strong signal to the public sphere this was a normal, fine process and outcome. Would the Republicans love to sink the nom? For sure. Same thing; a nomination that failed would send a signal that, at best, the Democrats didn’t take their vetting process seriously and, at worst, that they tried to slip through someone who shouldn’t be on the Court.
But the fact that neither of those things will happen doesn't mean this is a meaningless exercise. It will still have a huge influence on electoral, congressional, and court politics.
Actually, stupid political theater is good
Even if you accept everything I’ve written in this post as the reality of the situation, you might not think any of this is normatively desirable.
I apologize if I’ve given you that impression. While I’ve mostly written here from a descriptive realist point of view, I also happen to be a fan of political theater. People use that term derisively, but it absolutely has it’s benefits.
Jonathan Bernstein had a nice column today on this ($), which partially overlaps with what I’ve written here. I won’t go through it all here, because he does a very nice job highlighting the various public benefits of political theater: brining issues to public attention, conveying the positions of political parties, educating the public on constitutional process and separation of powers, and, yes, building a public record.
Here’s the key paragraph:
This kind of theater can convey some substantive material to the public. Hearings construct a public record to supplement the private deliberations that start as soon as a Supreme Court vacancy is announced. Hearings can also tell us lots of things about what politicians and political parties think is important. They can shine public light on previously obscure topics. Of course, what politicians and parties care about may seem foolish or worse, but that’s not the fault of the hearing process.
But do read his entire column.
This included my buddy Mike, who texted this AM that “the KBJ confirmation hearings have had some of the dumbest grandstanding I have had the pleasure of watching.”
I can’t actually say I never learned anything. There were, of course, bits and pieces of details that came out in hearings, and obviously when someone like Judge Brown Jackson talks about her childhood you can learn specific facts and gain a better understanding of a person. But I never once saw a member ask a question where I thought, “Yes, it’s really important that we get the answer to this question, there’s no other way we can easily get this answer,” and then we did indeed get the answer. Never happened.
This is know as a QFR, Question For the Record, or sometimes just a “get-back.”
Like, literally. Just call the person who would be the witness at the hearing. In 95% of cases, they will be happy to talk to you and answer the questions. In the other 5%, you weren’t going to get them to tell you at the hearing anyway.
Architect of the Capitol, Capitol Police, Government Printing Office, Library of Congress, CAO of the House, etc.
Harder than you might think, since every subcommittee on the Hill wants to have their hearing on Wednesday morning, since that’s really the only time you can guarantee the Members will all be in town. And every committee has like one or maybe two good hearing rooms, but like 3 or 4 subcommittees and ugh, it’s just a nightmare.
Much harder than you might think. Members of Congress tend to have a lot of things they’d rather be doing than sitting in a random committee hearing someone else called on a topic that isn’t of much interest to them or their district.
Not super hard, but super frustrating because (1) some Members (usually the chair) are constantly asking for more questions, even if they ignore 90% of the ones you generate; and (2) a lot of Members who should be asking you for questions are ignoring the ones you write for them and instead asking questions that are either (a) not relevant to the hearing but instead to their own personal pet issues tangent to the hearing or (b) not relevant to anything.
This general phenomenon—Members not being on the same page as the chair who called the hearing—is a pretty big problem and also a consideration when deciding to have a hearing. Because if the hearing is hijacked (either by the minority or by backbenchers in the majority) and goes off the rails into issues you didn’t want to come up, it can ruin the entire public purpose of the hearing.
They said you were going to be making public policy. They did not say how critical a three-hole punch was to the public policy process.
Or not. One thing I did admire about some Members was their uncanny ability to come into a situation totally cold and still own it, zero prep, just riding on their background knowledge and instincts. Truly awesome to see. On the other hand, a lot of Members overrate their ability to do this, to disastrous effect.
One recurring problem in room setup was those little nameplates that sit in front of the Members. Somehow, those things got occasionally lost. And so you’d always be going to try to borrow one from another subcommittee or from the full committee. And people would be borrowing yours, because they either lost one or one of theirs go borrowed. But then you wouldn’t get them back. And you’d always discover this literally 30 minutes before the hearing, as you were setting up the room. It was like clockwork, putting out an ABP for a Mr. Smith nameplate.
My go-to move here was to try to write the opening statement in such a way that it could simply be turned into the press release with minimal fuss.
If you haven’t noticed, it’s pretty hard to pass legislation these days. It’s not nearly as hard to bring the head of CDC and FDA down and yell at them about COVID. And a lot of policy can be changed just by getting the executive branch to use their governance discretion differently.
You might say “don’t people lie?” Yes and no. You’d be surprised how many people want to keep their word once they publicly promised to do something. But more importantly, it didn’t really matter if they weren’t planning on following through on their promise. Because as soon as they promised us something in public, all of our allies at the agency who agreed with us would become emboldened once the administrator made the promise. And that it made it that much tougher for the administrator to go back on his word. It shifted the politics within the agency.
I think a lot of people focus on the negative side of this—Members taking the position that bad thing X is happening and agency Y is screwing up— but a large number of congressional hearings are what we call “love fests,” where the agency is brought in for the explicit purpose of the Members celebrating how a policy they passed and the agency is implementing is working really well.
Of course, this isn’t guaranteed. The public understanding of the hearing might shift so much that Judge Brown Jackson either doesn’t have enough votes to be confirmed, or ends up with way more than the expected 50-52 votes.