Think it Through

Now that we have reached the end of the hearings on Judge Sonya Sotomayor’s nomination to the Supreme Court, someone in the Senate should state the obvious – Supreme Court hearings serve no constructive purpose and should be retired. They are just one more embarrassing spectacle produced by America’s most exclusive club.

Before the hearings began, the news media reported the details of Sotomayor’s character and her rise from the Bronx projects to the Ivy League, then back to her New York home to serve the public as a prosecutor and judge. Legal analysts filled the news pages and websites with long analytical pieces about her opinions and most agreed that her judicial record showed intelligence, adherence to the law, and impartial judgments. Journalists also covered her past speeches, and exposed her consistent predilection for giving speeches that were anything but impartial. We knew all of this before Senator Pat Leahy, Democrat of Vermont, gaveled the start of the Senate daytime television drama.

So what did we learn from the hearings?

• We found out that Sonya Sotomayor is as adept as John Roberts at speaking with a deliberate, intelligent-sounding tone while not answering questions.
• We were impressed that she looks as authoritative in her red suit and her royal blue suit as Roberts did in his navy suits. She seems sartorially ready to put on the robes of a Supreme Court justice.
• We were reassured that her mom loves her, as the elderly woman looked as sincere as Roberts’ family tableau on the front row in back of the witness.
• We were entertained by Democrat Sen. Charles Schumer of New York who gushed about the judge’s heroic personal story.
• We were puzzled and annoyed by Republican Sen. Lindsay Graham of South Carolina who worried out loud about the content of Sotomayor’s speeches, suggesting that the speeches were of equal importance to her judicial rulings.
• And if that was not enough, the television audience had the opportunity to hear Sen. Amy Klobuchar, Democrat from Minnesota, ask tough questions such as “What would you like history to say about you when all is said and done?” Klobuchar pointed out that she was just copying the exact wording that Republican senators asked nominees Roberts and Samuel Alito.

Okay, okay, the hearings have no useful purpose. But what harm can they do? Lots.

I am convinced that if the Senate had calmly and carefully studied Clarence Thomas’ record in 1991, away from the spectacle of televised hearings in which Thomas angrily accused the white Senators of conducting a “hi-tech lynching,” the Senate would have found his qualifications lacking and he would not be on the Supreme Court today. The Thomas hearings turned out to be the Anita Hill hearings, with Republican Senators putting her on trial. Then Senator Joe Biden, who chaired the hearings, allowed the process to be about almost anything except Thomas’ qualifications.

Public opinion research we have conducted over the past five years indicates the public takes the Senate’s role in the confirmation of Supreme Court justices more seriously than do many Senators. Majorities of Americans believe the Senate and the public have a right to know the nominee’s views on Constitutional issues and to learn about prior rulings and legal opinions. The public does not like lifetime appointments, but since that is the reality of the Supreme Court, Americans want the Senate to do a thorough job of interviewing someone who is applying for a lifetime job, from which he or she cannot be fired.

This does not require televised hearings. President Ronald Reagan’s appointment of Robert Bork to be a Supreme Court judge in 1987 is a good example of why we do not need hearings. Although the argumentative Bork made for great television drama, all of the objections to Bork were already displayed in his rulings as a federal judge and in his legal writings. The momentum for the Senate’s thumbs down on Bork began the minute he was announced. The hearings process just made it all tackier.

Nothing useful is gleaned from these hearings that could not be obtained better by having the Senate Judiciary Committee investigate and studiously consider the record of Supreme Court nominees, then present their reasoning in speeches in committee and on the Senate floor. In this way, the Senate and the public can focus on the nominee’s judicial qualities rather than his or her communication skills. Without hearings, we are more likely to judge a nominee’s fidelity to the Constitution than his or her ability to spin.

The process of public hearings on Supreme Court nominees is a relatively new phenomenon, born in the 1950’s, around the same time television was entering American households. It is ironic that the Senate, an institution that too often lives in the past, is not well served by using the media tools of the present.

The Senate would do well to go back to a process when Supreme Court nominees were considered, not put on display.