ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Can it be different? Of course it can be different. 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.

---Chief Justice John Roberts (Jan. 13, 2006).

[I]f this line of questioning were to be followed further any candidate for the federal judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view.

---New York Times (Feb 27, 1955).

These two quotes are from an op/ed by Benjamin Wittes today in the Washington Post. (Those of you with photographic memories may recall that Wittes was discussed by Senator Sessions during the Roberts hearings.) In his op/ed today, Wittes urges that televised confirmation hearings be ended:

It is time to end this failed experiment. Nominees need not bare their souls as a condition of judicial confirmation. Of course, ending nominee testimony would not cure all the ills of the modern confirmation process. It would not eliminate mischaracterizations of a nominee's record or the undue weight of interest groups. It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes.

Jonathan Adler comments on this proposal by Wittes:

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).

A statute would be much easier to pass than a Senate rule change. And in my opinion, the spectre of a perpetual minority filibuster is a much bigger problem than public confirmation hearings. William Myers, for example, is now in the third year of a Senate filibuster, and no such thing ever happened during centuries past. Additionally, if the opportunity for a minority to kill a nomination were eliminated, then there would be much less incentive for the minority to abuse the hearing process (though the majority could still do so).