July 21, 2009

Should the Nominee Just Stay at Home?

Steve Chapman argues that SCOTUS nominees should skip their own hearings because, as seen in the Sotomayor hearing, the nominee is just going to answer in a way so as not to reveal anything that might jeopardize her confirmation.  Indeed, Sotomayor even repudiated Obama's "empathy" standard along the way just to avoid any possible misteps.
"So why bother with this exasperating ritual? The republic managed fine without it for a century and a half. Justices from John Jay to Oliver Wendell Holmes Jr. were confirmed without having to argue on their own behalf. Not until 1925 did a Supreme Court nominee agree to appear before the Judiciary Committee. ...

Eventually, the tradition of reticence gave way and nominees found themselves with no choice but to show up and submit to lengthy interrogation under bright lights. Sometimes the hearings yielded helpful information.

But in 1987, after Robert Bork spent days elaborating controversial positions he had taken as a professor, his nomination went down in flames. So his successors learned to use as many words as possible to say as little as they could. That's how confirmation hearings degenerated into a tedious time suck on the order of watching third-graders try to pry open a locked safe with a Q-tip.

If the Judiciary Committee wants to know about how a prospective justice will behave on the court, it can look at her writings, speeches, and record as a lawyer or judge. It can ask those who know her for insights into her temperament and personality. It can summon legal experts to analyze her publicly stated thoughts. It can read her horoscope. None of these could possibly be less fruitful than the current practice."
I think there is something to Chapman's argument, but I think it can be addressed in another way.  I would like to see Senator's focus more on "clauses not cases" as Randy Barnett previously put forth in an Op-Ed leading up to the hearings.

"Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something."

This is not to suggest that a nominee's "Wise Latina" or Ricci will not be addressed in the future; it merely reflects the reality that these issues are unlikely to be honestly and openly debated by any nominee.  Any number of experts can and are called by Senators to weigh in on varying cases and/or speeches by the nominee as highlighted by my post below on property rights.  By focusing on clauses instead of cases something educational might actually result from these hearings instead of the bore they have now become.  Most importantly, it would show that a nominee has thought seriously about the Constitution, generally, in a way untethered to a particular case or preferred outcome, which, along the line of Sotomayor's comment to Sen. DeMint that she had never thought about whether an unborn child has any rights, are more beneficial to the public debate.