Analyzing the candor of Supreme Court nominees

SCOTUSblog wrote Legal scholarship highlight: Analyzing the candor of Supreme Court nominees. "In our article, ‘No Hints, No Forecasts, No Previews’: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan, we seek to overcome this gap in our understanding of the Supreme Court confirmation process. To that end, we present the results of a content analysis of every Supreme Court confirmation hearing transcript since 1955, the year that the proceedings became a regular part of the confirmation process. For each hearing, we coded all of the exchanges between a senator and the nominee, recording things such as the type of question asked, the degree to which the answer was forthcoming, and the reasons nominees gave for not answering more fully. Using this original dataset – nearly 11,000 exchanges in total – we then tested a series of hypotheses about nominee responsiveness in the face of Senate questioning.

Our results show that the conventional wisdom about Supreme Court confirmation hearings needs to be rethought. First, we discovered that there has not been a dramatic decline in nominee responsiveness since the 1980s. Recent nominees, such as Samuel Alito and Elena Kagan, were just as forthcoming as many earlier nominees, and even more forthcoming than others. Second, the overall rate of responsiveness for all nominees, including those who came after Bork, is much better than generally assumed. Nominees generally answer between sixty and seventy percent of their questions in a fully forthcoming manner. By contrast, only about twenty percent of the questions get a qualified response, and outright refusal to answer rarely tops ten percent. Therefore, whether we are talking about hearings from the 1960s or the 1990s, the notion that nominees evade more questions than they answer is unfounded. Lastly, we find that there have been subtle but important changes in the types of questions that are being asked, the topics of those questions, and in the ways in which nominees answer them, and that these shifts have helped to fuel the perception that responsiveness has declined where in fact it has not."