Posted by Jonathan Adler:
Wittes on Reforming the Confirmation Process:
http://volokh.com/archives/archive_2006_07_30-2006_08_05.shtml#1154264576
In contrast to [1]Senator Kennedy's op-ed (which I discuss [2]here),
Benjamin Wittes offers [3]a thoughtful essay in today's Washington
Post on the judicial confirmation process, based in part on his
interview of Chief Justice Roberts. (Interestingly, Senator Kennedy's
essay is on the front page of the Post's Outlook section this morning,
while Wittes' piece is buried on page 4.) Among other things, Wittes
adds some useful historical perspective to the debate over judicial
nominations.
As Wittes notes, judicial confirmation hearings have never been about
the substance of a nominees views.
If the history of judicial confirmations proves anything, it is
that the hearings were never meant to be a thoughtful inquiry into
a nominee's judicial philosophy. Rather, their point has always
been to wring concessions from would-be jurists or to tar them as
unworthy. Since live testimony by nominees became standard after
the Supreme Court's 1954 decision striking down segregated public
schools, senators have sought to pressure nominees into swearing
allegiance to contested ideas, or to make statements that provide
ground for opposition.
That is what the hearings still achieve today. They function
coercively not because they are failing their intended purpose.
Coercion is their intended purpose.
Indeed, the nature of the political process is such that even if a
serious probing of a nominee's substantive views were desirable (and I
do not believe it is), such a dialogue would not occur in the Senate.
How should the hearings be conducted? Chief Justice Roberts'
prescription does not sound so bad.
If there are serious questions about qualifications, senators
should explore those. If there are serious questions about ethics,
senators should explore those. If there are disputes about
appropriate judicial philosophy and approach, talk about those. But
barring that . . . everybody doesn't have to think that this is an
opportunity for them to be the reincarnation of Clarence Darrow.
Wittes offers an alternative prescription: End nominee testimony.
The democratic moment is not the interrogation of the nominee. It
is the point at which the people's representatives debate the
nominee's record and cast their votes. Ironically, the hearings
only obscure that moment. Many viewers probably remember Alito and
Roberts demurring on how they would vote on abortion. But how many
remember what a single senator said during the floor debate over
either of them?
This is a good idea too, but I would not hold my breath waiting for it
to happen.
I have long believed that the Senate should be quite deferential to a
President's judicial nominations, should not vote for or against
judicial nominees due to their judicial philosophy, and should ensure
that all nominees receive a quick up-or-down vote, largely based upon
the nominee's record, qualifications, and character. In my view, the
relevant "democratic moment" occurs during the Presidential election,
but I realize this is anything but a consensus view. I also believe
that past Democratic mistreatment or Republican nominees did not
justify Republican payback during the Clinton presidency, and
Republican malfeasance does not justify Democratic payback since.
However one believes the process should be reformed, there is a window
for meaningful reform of the confirmation process. At present, neither
party is particularly interested in endorsing "neutral" rules for the
process. Senator Leahy, for example, proposed rles for ensuring quick
consideration of judicial nominees during the Clinton Administration,
but he would not support (let alone sponsor) that legislation today.
The only real hope is for a majority of Senators to endorse a set of
neutral procedures that will take effect after an intervening election
-- preferably one far enough in the future that the outcome is
indeterminate (e.g. an agreement in early 2007 to take effect in
January 2009). In this way, both parties could endorse the reforms on
their merits, rather than on their likely effect on either party's
nominees. Similar ideas have been floated in the past, but there have
not been many takers in the Senate.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072801489.html
2. http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1154219073
3.
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072801470.html
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