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THE HYDRAULIC THEORY OF OPPOSITION Ian M. Swenson * For many years scholars and the public have assumed that Circuit Court confirmation hearings, like Supreme Court confirmation hearings, are con- tentious and focused on hot button issues such as abortion. In fact, this article will show that prior to the Trump administration Circuit Court nom- inees were rarely questioned about abortion and hearings were rarely con- tentious. But in the 115th Congress (the first two years of the Trump ad- ministration) the majority of nominees were questioned about abortion— some of them at great length. This article seeks to explain this change in senatorial behavior and suggests that it is the result of legal and political pressures on the senators as well as changes to Senate procedures. This is the Hydraulic Theory of Opposition. The legal and political pressures on * JD, New York University School of Law, 2019. My thanks to Dean Trevor Morrison for his supervision. My thanks also to Luke Goveas, Cameron Sinsheimer, and Nicholas Gallagher, for their smart and helpful edits. Thanks finally to the editors of the Journal of Law & Liberty for their terrific work preparing this article for publication. 205 206 New York University Journal of Law & Liberty [Vol. 14:205 the Democratic senators drive them to oppose these nominees based on the nominees’ presumed position vis-à-vis abortion; and the way the Senate structures its procedures determines how this opposition manifests. Because the Senate has eliminated sub rosa forms of opposition—such as the filibus- ter and Blue Slips—contentious confirmation hearings are now how that opposition manifests. Because confirmation hearings do nothing to improve the confirmation process and do considerable harm to the nominees, the fed- eral judiciary, and the public’s perception of the judiciary, this article sug- gests a further change in Senate procedure to improve the process: The elim- ination of confirmation hearings as a standard feature of the confirmation process. INTRODUCTION In 1973 the Supreme Court decided Roe v. Wade and declared that women have a right to abortion protected by the United States Constitution.1 That decision thrust federal courts into the abortion debate: They would decide how abortion could be regulated. When Roe’s central holding was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey,2 Justice Scalia’s dissent famously predicted that the fact that judges and not legislatures would decide how abortion could be regulated would lead confirmation hearings to “deteriorate into question-and-answer sessions in which senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them.”3 This prediction has come to pass. Although questions about abortion have been a feature of Supreme Court confirmation hearings since Justice O’Connor was nominated in 1981, they have not been a common feature of Circuit Court confirmation hearings 1 410 U.S. 113 (1973). 2 505 U.S. 833 (1992). 3 Id. at 1000-01 (Scalia, J. dissenting) 2020] THE HYDRAULIC THEORY OF OPPOSITION 207 until the Trump administration. In the 115th Congress—the first two years of the Trump administration—more than half of Circuit Court confirmation hearings involved a senator asking a nominee for her views on the correctness of Roe or the morality of abortion. This paper documents and then seeks to explain that change in senatorial behavior. Part I first briefly describes Roe’s role in Supreme Court confirmations since 1981. It then describes the role Roe has played in Circuit Court confirmations using both quantitative analysis of every Circuit Court hearing since 1981 and qualitative analysis of how those hearings have changed over time. Part II explains this change. It first describes factors that may be driving senators to focus on abortion, namely the current legal regime, the ideological makeup of President Trump’s nominees, political pressures on the senators, and the strategic considerations at play in the 115th Congress. It then describes how changes to Senate procedures are forcing senators to express their opposition in confirmation hearings rather than by using covert procedural tools. This is similar to the Hydraulic Theory of Money in campaign finance4—call it the Hydraulic Theory of Opposition. Given that there is opposition and there has been opposition for some time, how the Senate structures its procedures will dictate how that opposition is expressed. Because all other tools have been taken off the table, contentious confirmation hearings are now how that opposition manifests. Part III then describes how the Roe question affects other parts of the confirmation hearing. In short, because nominees do not want to 4 Raymond J. La Raja & Brian F. Schaffner, The Hydraulics of Campaign Finance, Michigan Publishing https://quod.lib.umich.edu/u/ump/13855466.0001.001/1:7/--campaign-finance- and-political-polarization-when-purists?rgn=div1;view=fulltext. 208 New York University Journal of Law & Liberty [Vol. 14:205 answer questions about abortion, they refuse to answer questions about any legal topic. Finally, Part IV suggests that the current state of confirmation hearings is concerning. It erodes public confidence in the independence of the judiciary and may in fact be a threat to judicial independence. It then suggests a fix that will force senators to express their opposition in a more productive manner: the elimination of confirmation hearings as a standard feature of the confirmation process. I. THE HISTORY OF ROE’S ROLE IN THE CONFIRMATION PROCESS A. ROE AND SUPREME COURT CONFIRMATIONS On July 7th, 1981 President Ronald Reagan announced he intended to nominate Sandra Day O’Connor to be an Associate Justice of the Supreme Court of the United States.5 The first question a reporter asked following the announcement was, “[d]o you agree with her position on abortion, Mr. President?”6 From there, abortion dominated Justice O’Connor’s confirmation.7 Outside the hearing room, social conservatives such as Jerry Falwell criticized the President’s choice of Justice O’Connor because they were not confident that she opposed abortion.8 Inside the hearing room, Republican senators spent three days questioning 5 President Ronald Reagan, Remarks Announcing the Intention to Nominate Sandra Day O’Connor to Be an Associate Justice of the Supreme Court of the United States (July 7, 1981). 6 Id.; Interestingly the first question a reporter asked when President Reagan announced the nomination of Antonin Scalia to the Supreme Court was: “Mr. President, what impact do you think this will have on the abortion issue—perhaps the most emotional issue facing the Court?” President Ronald Reagan, Remarks Announcing the Resignation of Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist to Be Chief Justice and Antonin Scalia to Be Associate Justice (June 17, 1986). 7 Linda Greenhouse, Panel Approves Judge O’Connor, N.Y. TIMES, Sept. 15, 1981, at A16 8 Linda Greenhouse, New Right Loses on Judge but Gains New Zeal, N.Y. TIMES, Sept. 17, 1981, at A20 2020] THE HYDRAULIC THEORY OF OPPOSITION 209 her about both her legal opinion of Roe v. Wade9 and her personal opinion on abortion.10 Justice O’Connor repeatedly answered that she was personally opposed to abortion but declined to give a legal opinion on the matter.11 She did not want to comment on an issue that could come before Supreme Court.12 In the end, Justice O’Connor’s opinion on abortion did not matter. She was the popular nominee of a popular president and was confirmed 99–0.13 The pro-life opposition to her nomination has been relegated to a brief statement by Senators Denton, East, and Grassley in the Senate Report14 and is occasionally mentioned very briefly in histories of Supreme Court nominations.15 But her nomination was the beginning of something new. Prior to O’Connor’s confirmation, no Supreme Court nominee had ever been asked about abortion.16 Since her confirmation, every Supreme Court nominee has been asked about abortion.17 This both makes sense and does not. Roe and its progeny are a creation of Supreme Court case law, so any change to the Court’s personnel may result in a change to the constitutional status of abortion. Thus, parties that care about how abortion is regulated will care about the makeup of the Court and will try to advocate for their 9 See, e.g., The Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 97th Cong. (1981) 198-99 (statement of Sen. East, Member, S. Comm. on the Judiciary). 10 Greenhouse, supra note 8. See also id. at 98 (statement of Sen. DeConcini, Member, S. Comm. on the Judiciary). 11 Greenhouse, supra note 8. 12 Id. 13 Jim Mann, O’Connor OKd by Unanimous Vote in Senate, L.A. TIMES, Sept. 22, 1981. 14 The Nomination of Judge Sandra Day O’Connor, supra note 5 at 2-7. 15 HENRY ABRAHAM, JUSTICES, PRESIDENTS, & SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II 267 (5th ed. 2007). 16 LORI RINGHAND AND PAUL M. COLLINS, SUPREME COURT CONFIRMATION HEARINGS & CONSTITUTIONAL CHANGE 123 (2013). 17 Id. 210 New York University Journal of Law & Liberty [Vol. 14:205 preferred candidates and against ones they believe will not support their goals. Supreme Court confirmation hearings are also an excellent campaign opportunity for senators. Every major television station, newspaper, and radio station covers these hearings, and senators can use the hearings to try and make a national name for themselves.18 A tough line of questioning about a nominee’s opinion of the correctness of Roe or the morality of abortion can get the public’s attention and signal to the senator’s constituents that she shares their priorities.
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