Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead, the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources.

This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955 and reporting some preliminary analysis. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, this Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity.

Drawing on the insights of cultural cognition scholars, this Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture.