About four months ago, William J. Stuntz, a professor at Harvard Law School, wrote an item for The New Republic arguing that Senate hearings for Supreme Court nominees should be scrapped. If the Senate Judiciary Committee insisted on discussion, Stuntz argued, the nominee shouldn’t be forced to be there.
That sounds crazy, and it’s politically unthinkable — elaborate Senate hearings on Supreme Court nominees, with the nominee as chief witness, are now part of America’s political tradition. The hearings are the judicial equivalent of presidential debates. No one can sit in the Oval Office unless he — or, one day soon, she — has sweated under Jim Lehrer’s questioning. So too, no one can sit on the Supreme Court without first undergoing a legal grilling on Capitol Hill. Unfortunately, the current style of hearings harms the Court, discredits the Senate, and encourages presidents to pick weak nominees. This is one political ritual we’d be better off without.
Stuntz’s argument was compelling, but after 11 years without a hearing for a Supreme Court nominee, I had forgotten how awful they are and resisted his thesis. That was in September — and after the last few days, I’ve come around to Stuntz’s way of thinking. Indeed, apparently I’m not the only one.
Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.
“The system’s kind of broken,” said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito. “Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues,” such as a president’s authority to go to war, said Biden.
As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC’s “Today” show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote. “Just go to the Senate floor and debate the nominee’s statements,” the Delaware senator said, “instead of this game.”
A radical twist? Not really. Until 1925, no Supreme Court nominee sat through committee hearings. As Stuntz noted, between 1925 and 1954, “some would-be justices sat at the witness table and others didn’t. Either way, by contemporary standards most hearings were casual, even perfunctory.”
It’s time to consider going back to the old system.
Try as I might, I can’t think of anything of any substance that’s been accomplished this week. For that matter, John Roberts’ hearings were no better. Dems on the Judiciary Committee ask days of questions that essentially boil down to, “You’re really awful, aren’t you?” To which the nominee responds, “No, I’m really not.” Republicans split their time between responding to Dems’ questions on the nominee’s behalf and asking the nominee hardballs such as “How do you maintain your youthful good looks?”
Enough. The questions are speeches, the answers are evasive, and the whole spectacle doesn’t tell us anything.
How would senators consider a nominee’s qualifications? By reviewing his or her record, public statements, written rulings, published papers, etc. What if a Harriet Miers-like nominee doesn’t have any of these things? Then the Senate should reject the nomination. What if the nominee has a paper trail, but senators have questions? They can be submitted in writing.
Even the history behind how hearings became common is an ugly one.
That changed in 1954, when Earl Warren and his colleagues decided Brown v. Board of Education. To Southern Democrats (there weren’t many Southern Republicans), Brown was a second Gettysburg. A second Appomattox looked likely, and soon. Warren–Brown’s author–had been Dwight Eisenhower’s first Supreme Court nominee. Ike’s second vacancy came only five months later, and he nominated a New York judge named John Marshall Harlan–grandson of the Kentuckian of the same name who was the lone dissenter in Plessy v. Ferguson. Harlan’s nomination came from a Justice Department headed by another New Yorker, the strongly pro-civil rights Herbert Brownell, generally seen as the moving force behind the Eisenhower administration’s decision to stand with the NAACP in Brown. For segregationists, the situation looked dire. They lacked the votes to defeat future Warrens and Harlans. They could try to filibuster, but that risked uniting the rest of the Senate (and the country) against them. Appomattox appeared unavoidable.
So Southern Senators made the choice Lee didn’t: They chose guerilla war, and hoped the pro-civil rights majority would get tired of fighting. Hearings on Supreme Court candidates, with the candidate in the hot seat, were a key weapon in that fight. Beginning in January 1956, Southerners controlled the Senate Judiciary Committee–the chair was Mississippi’s James Eastland, one of the most rabid segregationists on Capitol Hill. Eastland knew he couldn’t count on defeating every Warren or Harlan, but he could slow the train and try to find a scandal, some story that might grab attention. A few nominees might be derailed. Maybe the White House could be bullied into picking a Southerner.
It’s a system that deserves to be scrapped. I know senators won’t go for this idea — hearings are their time to grandstand for the cameras — but there’s a serious case to be made here. The hearings are more than awful; they’re pointless. End them.