We think of Supreme Court confirmation hearings as an obvious and necessary part of the process of putting justices on the court, but it wasn't always so. As the Associated Press noted not long ago, Harlan Fiske Stone became in 1925 the first Supreme Court nominee to appear before the Senate Judiciary Committee, and it wasn't until the 1950s that such appearances actually become commonplace.
It it time to retreat to our past?
We ask the question a little facetiously, but only a little. In light of the John Roberts hearings just behind us and the Harriet Miers hearings just ahead, it might be time to ask whether these stage-managed Kabuki dances haven't outlived their usefulness -- at least so long as nominees are allowed to testify without having to say much when they do.
At his press conference yesterday, George W. Bush deflected questions about Harriet Miers' views on abortion rights by saying that "she'll be asked all kinds of questions" during proceedings before the Senate. Yes, she'll be asked lots of questions. But if recent history is any guide, she won't really answer any of them. Senators won't be able to ask Miers questions based on her prior judicial decisions or her scholarly writings on the Constitution because no such things exist. They won't be able to ask her questions based on the written advice she has given the president because he won't turn over such documents. They can ask Miers about discussions she's had with the president, but she'll almost certainly invoke either executive privilege or the attorney-client privilege. They can ask about her views on issues that matter to a lot of Americans -- abortion, gay rights, the war on terrorism -- but she'll almost certainly refuse to answer on the ground that such issues might come before the court. And they can ask about the role her religious faith may play in the judicial decisions she might make, but some of their colleagues may shout them down -- as they have before -- with charges of religious bias.
So Miers will have her hearings. She says she's not an ideologue. She'll say she won't legislate from the bench. She'll say, as John Roberts and Clarence Thomas and Antonin Scalia did, that she has no agenda. And then she won't say much of anything at all.
Maybe it will be different this time. This time, it's not just the minority Democrats who have an interest in learning more about the nominee. Roberts could get away with the silent treatment. He was unquestionably qualified in the credentials sense -- Harvard Law, a clerkship under William Rehnquist and dozens of appearances as a lawyer before the Supreme Court -- and he had been on the right's side of the law for so long that it was hard to see how he could be anything but a reliable representative on the court. Miers is different. She's neither as qualified, as consistent, nor as charming as the nominee who preceded her. As George Will writes today, you could have asked 100 people wise in the ways of the court each to name 100 individuals who have shown that they have the "reflectiveness and excellence" required of a justice, and "Miers' name probably would not have appeared in any of the 10,000 places on those lists." She embraced Jesus -- and with him, the Republican Party -- relatively late in life, and she sometimes seemed wobbly even after she did.
So maybe a few nervous Republican senators will join with Democrats in forcing Miers to answer a few questions when she appears at her hearings. We hope they will. But if they don't -- if a nominee with no obvious qualifications for the Supreme Court is allowed an answer-free ticket to confirmation -- then perhaps it's time for the members of the Senate to ask whether confirmation hearings are still worth the energy required to power the TV lights that surround them.