Senators Want Changes in Confirmation Hearings

Two Democratic senators said today they're not happy with how the Senate Judiciary Committee conducts confirmation hearings for Supreme Court nominees.

As the committee prepared to vote on Sonia Sotomayor's nomination, Sen. Herb Kohl (D-Wis.) bemoaned what he called a "familiar pattern" in confirmation hearings. Nominees, he said, take the "path of least resistance" when they refuse to answer almost all of senators' questions about the substance of law.

"We cannot ask nominees to disclose how they would rule on cases that might come before them, but it is reasonable for us to ask their opinions on past Supreme Court decisions," said Kohl, the second most-senior Democrat on the committee.

Kohl, who supports Sotomayor's nomination, said his comments were not directed only at her, but at all nominees in recent years and at the process itself.

Sen. Russ Feingold (D-Wis.) said the process fails to educate either the public or the Senate about a nominee. It makes no sense, he said, that the only person in the United States who cannot express an opinion on recent Supreme Court rulings "is the person from whom the public most needs to hear it."

"These hearings have become little more than theater," Feingold said, "where senators try to ask clever questions and nominees try to come up with clever answers."

Neither Feingold nor Kohl proposed specific changes.

As The National Law Journal reported this month, the battle over what questions can be asked and answered at confirmation hearings has continued for almost a century. Proposed changes — such as having a senior staff person question the nominee — have gained little momentum.

UPDATE (11:21 a.m.): Sen. Tom Coburn (R-Okla) agrees. "We need to let judges let us know what they really think," he said.

Comments

[Joe]

"has continued for almost a century"

I'd like to know more about this, but the article only says that in passing, and then limits itself to the last twenty or so years.

This is annoying. How about telling us how it really was before Bork, so we can truly compare? Show us how the O'Connor or heck Douglas hearings were sooo much better, or let's shut up about how things have "become" so bad, when I doubt it was so much informative in the past either.

I welcome reform but why didn't the senators cite these people during the questioning (or even yesterday) to make it clear that it is not a violation of legal ethics to say more? It came out as personal pique and was pointless.

[Chris]

First, members of the Senate must promise not to launch a character assassination, complete with television advertising, for the nominee who decides to be candid. Let's not forget that the precedent for these non-informative hearings is 1987, and the Bork hearings. Granted, Judge Bork could have been more deferential to the Committee, but you could not ask for a nominee who was more informative than he, and look where it got him.

[Tim Rosenfield]

The "Advice and Consent" clause doesn't require hearings at all, certainly not televised hearings. As everyone knows, there was a time when it was considered an indignity to ask a nominee before the judiciary committee - and not until Stone did a nominee make a personal appearance. This exercise has become a charade and at best an exercise in futility. It's present primary purpose is to showcase the senators - and that's hardly beneficial.

[mtl]

the confirmation hearings have become too much of a political animal and less of an actual measure of a judge's ability, expertise, and other qualifications.

Why would anyone vote against Sotomayor? She's arguably more qualified than any other nominee ever, certainly in the last 20 years. The only reason, as comments from Sessions, Grassley, Hatch, et al. illuminate, is because they disagree - as a political matter - with her judicial philosophy. They couch their position as a principled one, but what it really means is that she would not rule on issues the way they want. Its that transparent.

So to remove the politicization, perhaps the President should not be the one nominating the SCOTUS justices. Perhaps an impartial commission should provide the nomination.

[Jeff Gamso]

Here's a change that would work:

Refuse to confirm any nominee who refuses to answer questions on the ground that unlike the current members of the Court who have expressed, in opinions, their views of issues that did come before the Court and might again, she must either have no views on any issue - or keep secret those she has.

As soon as a couple of nominees get rejected for not answering, answers will be forthcoming.