Should judicial nominees participate in Senate confirmation hearings?

In the hard copy of this week's New Yorker magazine, author Janet Malcolm hits the nail on the head when she discusses the true nature of Supreme Court nomination hearings in her article entitled "The Art of Testifying." Malcolm says that the hearings reveal the nature of the Senators, not necessarily the nominees.

If you have ever actually been to a Supreme Court nomination, the theater that occurs inside the hearing room is nothing compared to the jockeying that takes place outside the hearing room. Inside the hearing room, all is scripted and carefully crafted. Outside, at the microphones, or "the sticks" as they are called, it is a bit more free-wheeling.

According to Malcolm's article, Senator Joe Biden has called for the abolition of Supreme Court confirmation hearings because, as Biden says, "when they are over, we know no more about the nominee's judicial philosophy than we did before they started."

Perhaps Biden ought to replace the words "judicial philosophy" with "politicial ideology."

Joe and his colleagues on the Left are far more interested in cementing an ideological litmus test on these nominees. Funny, he didn't seem to be terribly concerned about Ginsburg's political leanings as the former ACLU General Counsel.

And Senator Biden won the "It's All About Me" award for his performance during the Alito hearing week. Literally.

According to the press release, "Senator Joe Biden holds the record this week for asking the longest questions of the entire hearing, and that's saying something! In one thirty-minute session, Biden spoke for 24 minutes and Alito gave a six minute answer. In other words, "Enough about me, now, what did YOU think of my last question?" Biden also may hold a some kind of record for referring to himself once every 12 seconds, five times each minute, for a grand total of 360 times in 70 minutes of questioning. The donning of the Princeton cap deserves special mention in a fleeting attempt to obtain 'Visual of the Day.' "

No wonder he didn't learn anything about Sam Alito after a record-setting week of questions and answers. He just flat wasn't listening.

Those who are making every effort to put an ideological litmus test in place may not like the result of their efforts. The words "conservative" and "liberal" should not be applied to judicial nominees. It is a political categorization, not a judicial philosophy. Either a judge is an activist or he/she practices judicial restraint. Judicial activism, regardless of the political ideology behind it, has done more to damage jurisprudence than almost any other trend in the law -- although the application of foreign law to American cases runs a close second.

The practice of judicial nominees testifying before a Senate committee is an invention of the last century and given the way Senators have taken to treating nominees in the past quarter century, it would be understandable if the practice is done away with. It used to be considered unseemly for a judge to appear and participate in such a political environment. Perhaps it is time to consider that again.

Except that it is precisely because of the practice that judicial nominees have embraced -- refusing to talk to the press. White Houses long ago determined that talking to the media would not be helpful in any way and in fact, could harm a nomination, so judicial nominees are strongly encouraged not to talk to the media and nominees seem content with that. No doubt nominees' spouses would like to have a discussion with a few media outlets, but probably not for attribution.

Hearings, therefore, are basically the only time a nominee has the opportunity to present his/her "case" to the Senate, and more importantly, the American public. (Although the hearings probably have a lower viewership than the Academy Awards...) Nominees like John Roberts and Sam Alito made excellent presentations in the hearing room and gave credence to the rumors of their remarkable legal minds.

So while the Senators give canned, predictable speeches that accomplish little, at least the nominees have an opportunity to display their legal skills, demeanor and judicial philosophy without the filter of well-financed liberal organizations determined to shred reputations to score political points. That may just make the whole dog and pony show worthwhile.