Questions senators can ask at confirmation hearings

The Constitution gives the Senate a share in appointing the people who run the federal government. Under Article II, the president nominates cabinet officers, judges, ambassadors and other officials, and appoints them with the advice and consent of the Senate. The hearing is where that consent is supposed to be informed. Senators get a few rounds of questions, usually five to eight minutes each, to find out whether a nominee is fit for a specific job.

How that time gets used varies a lot. Some hearings dig into what the nominee would actually do. Others mostly replay old controversies or turn into speeches with a question mark at the end. Looking at a few historic hearings helps show what a useful question looks like.

The Hagel hearing: plenty of questions, notable gaps

In January 2013, former Nebraska senator Chuck Hagel, a Republican, appeared before the Senate Armed Services Committee as President Barack Obama's nominee for secretary of defense. The hearing lasted most of a day and was widely described as rough.

Much of it focused on Hagel's past statements. Sen. John McCain pressed him repeatedly on whether he had been right or wrong to oppose the 2007 troop surge in Iraq, and Hagel declined to give a one-word answer. Other senators questioned him at length on earlier remarks about Israel and the pro-Israel lobby and on his positions on Iran sanctions. Some time went to home-state defense interests, such as shipbuilding.

NPR's summary afterward noted something that didn't come up: no senator asked Hagel about China. Relatively little time went to Afghanistan, where U.S. troops were still fighting, or to how he would manage looming budget cuts across the Pentagon. Those were the questions that would occupy much of the job.

Hagel's nomination was then filibustered, a first for a defense secretary nominee. A cloture vote on February 14 fell short. On February 26 the Senate voted 71-27 to end debate and confirmed him 58-41.

None of this means the questions about his record were illegitimate. A nominee's past judgments are fair game, and senators who believed his views on Iran or Israel would shape his decisions had reason to ask. The point is about proportion. A hearing has limited time, and every minute spent on a statement from years earlier is a minute not spent on how the nominee would run the department.

The Tower hearing: the questions that decided it

In 1989, President George H. W. Bush nominated former Texas senator John Tower as secretary of defense. Tower had chaired the Armed Services Committee and was widely seen as an expert on defense. His hearings came to focus on questions about his personal conduct, including drinking, and about his consulting work for defense contractors after leaving the Senate.

The Senate rejected him, 47 to 53. It was the first time the full Senate had voted down a cabinet nominee since 1959. Supporters argued that the allegations were unproven and that the process had turned into a character attack. Opponents argued that a defense secretary's judgment and potential conflicts of interest were exactly what the Senate was supposed to examine. Both sides were asking a real question: what personal conduct is relevant to this particular job?

Bork and Ginsburg: how much should a nominee say?

Supreme Court hearings raise a different problem. Senators want to know how a nominee would decide cases, and nominees don't want to commit in advance.

When Judge Robert Bork was nominated to the Supreme Court in 1987, he answered questions about his legal philosophy at length and in detail, defending decades of writing on constitutional interpretation. The Senate rejected him 42 to 58. Many observers concluded that his candor had given opponents material to work with.

In 1993, Judge Ruth Bader Ginsburg took a different approach, declining to discuss how she would rule on issues likely to come before the Court. She summed up her position as "no hints, no forecasts, no previews." That stance, often called the Ginsburg rule, has been followed in some form by nominees of both parties ever since, and senators of both parties have complained about it when the nominee was from the other side.

The effect has been to push judicial hearings toward questions about method: how a nominee reads statutes, how they treat precedent, what they did in specific past cases. Those can be very revealing when asked well.

What a strong confirmation question looks like

Across these hearings, the questions that produced useful answers shared a few traits.

They were about the job. "What are the first three things you would change at the department, and how will we know if they worked?" tells senators more than a question about a quote from ten years ago.

They asked about specifics the nominee could be held to. "Will you commit to providing this committee with the department's internal audit within 90 days of taking office?" creates a checkable promise.

They tested judgment with real past cases. "Tell us about a decision you got wrong, what you learned, and what you'd do differently" is hard to answer with a talking point.

They asked about independence. "What would you do if the president directed you to take an action you believed was unlawful?" is a fair question for any nominee in any administration. It echoes the question Harold Hering asked about nuclear orders, discussed in our article on his case.

They asked about conflicts and money in plain terms: "What financial interests will you divest, and which recusals will you make?"

Questions any committee could use

• What problem in this agency do you think is most underestimated?
• Which of your predecessors' decisions would you reverse, and why?
• How will you handle a disagreement with the White House on a matter of law?
• What information will you commit to sharing with this committee, and on what schedule?
• What is the strongest criticism of your record, and how do you answer it?
• What question did you expect today that no one asked?

That last one borrows from good interviewing practice. It's a question about gaps, and confirmation hearings, by their nature, tend to have them.