Blog of the International Journal of Constitutional Law

Televising Supreme Court nomination hearings

Elena Kagan’s nomination hearings have concluded and a vote in the Senate will occur shortly. Although the televised hearings were not the stuff of compelling political theater, they are somewhat exceptional. Polities around the globe have fashioned national high courts and written constitutions but public hearings over nominations are rare. Canada held its first public hearing in 2006. Commentators noted how dignified the hearing was compared to the United States but then Parliament lacks the power to block appointments. Germany, on the other hand, has vigorous debate and negotiations over appointments but these are conducted in secret.

The question is whether there is any democratic pay-off to having political actors debate nominations in public. When it comes to decision-making in a democracy, public discussions obviously matter since otherwise citizens lack the information to make informed choices. It is not clear, however, that publicized hearings for nominees adds any useful information. The Senators make remarks designed to mobilize their core constituents but which throw little, if any, light on what the job of the Supreme Court is and what qualities we might want in a prospective Justice. Light may be the best disinfectant in a democracy but some institutions, such as courts, perhaps operate better out of the glare of the cameras.


2 responses to “Televising Supreme Court nomination hearings”

  1. Tom Ginsburg Avatar
    Tom Ginsburg

    I am reminded of Jon Elster’s distinction between arguing and bargaining in constitutional design. When constitution-making is transparent, he thinks it is conducive to argument, including public posturing but also arguments from principle. When constitution-making is done behind closed doors, it is more conducive to hard bargaining among interests. analogizing to supreme court confirmation, without television we might get more quid-pro-quo bargains, leading to appointments that are even more politicized than those we already get.

  2. Miguel Schor Avatar

    Tom: that’s a very helpful distinction. Do we want to eliminate hard bargaining in constitution-making? Would you counsel a polity seeking to write a new constitution to do it behind closed doors or in the open? If compromises are necessary to achieve consensus, then bargaining in the open may well undermine the ability of opposing forces to achieve consensus. What bothers me about televised hearings is that they provide incentives for political actors to emphasize differences that undermine the trust needed for institutions to operate well. Perhaps an adage attributed to Bismarck is right: no one should see how laws or sausages are made.

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