Is it time to give up on confirmation hearings?

They're good TV, but what have we learned?


Tim Grieve
January 12, 2006 7:15PM (UTC)

We feel cheated. Over the last four days, we've spent what seems like years glued to the War Room couch, watching events unfold -- and that seems like such a strong word -- in the confirmation hearing for Samuel Alito. We've missed very little of C-SPAN's gavel-to-gavel coverage, but we stepped away a couple of times Wednesday. It was just long enough for us to miss seeing Alito's wife depart the hearing room in tears and to hear Texas Sen. John Cornyn slip up and call Alito "Scalito."

Oh, the humanity.

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We've said it before and we'll say it again: We're not sure why they bother having these hearings anymore. They're fine as far as spectacles go, and they do tend to focus the nation's attention on a Supreme Court nomination in a way that floor speeches and blast e-mails from interest groups can't. But really, what was accomplished when John G. Roberts spent a few days charming senators in September? When Samuel Alito spent four days boring them this week?

Maybe we know a little more now about the kinds of guys these judges are. Roberts came off as smooth and brilliant, with an encyclopedic knowledge of the law. Alito has come off as not so smooth and maybe not quite as brilliant, with a highly selective memory about his own life. But aside from the platitudes -- they have no agendas, they believe no man is above the law -- we didn't learn much of anything about how these men might think as Supreme Court justices.

We've learned that both men believe that Brown v. Board of Education sure was a good decision, but we haven't learned much else about their views of Supreme Court cases past or future. Long before they were nominated to serve on the bench, both Roberts and Alito made statements suggesting that their minds may be made up on the question of abortion rights. During their confirmation hearings, each man distanced himself from his prior statements -- it was a long time ago, I was just a lowly Justice Department lawyer then -- but never quite disavowed them. There's nothing to suggest that either man has had a change of heart on Roe v. Wade since the 1980s, so we're pretty certain that we know what Roberts and Alito think about the case. But in the course of a confirmation hearing, we're all supposed to pretend that we don't: Alito says he has an "open mind" about abortion, and therefore he must -- even if he refuses to go as far as Roberts did in declaring Roe "settled law."

Nothing real can happen in these hearings -- the nominees are prepped too well for that -- so we all watch for the theatrics. Did Alito sweat? Did he lose his cool? Did the Democrats catch him in some kind of "gotcha" moment? It would all make perfect sense if we were looking to hire somebody to work as a professional witness. But what we've got here is an opening for a judge, a judge who will have a lifetime appointment on the Supreme Court and therefore won't ever have to answer another question from anybody again. Who cares how he reacts to tough questioning, if he combs his hair right, if his kid is cute or if his wife breaks down in tears?

It may not make for good TV, but the fact is that senators can learn a lot more about a Supreme Court nominee by reading his judicial decisions and prior statements than they can by spending a week with him in a Senate hearing room. Going into the Alito hearing, Democrats plainly hoped that they could make the nominee come off as a scary extremist. But what matters isn't whether he comes off as an extremist. It's whether he is one. And if the senators couldn't figure that part out from Alito's writings, a lifetime worth of hearings isn't going to help them do so.

There are times when confirmation hearings matter, of course. If a record-free nominee like Harriet Miers ever made it that far, a confirmation hearing might be the only way to obtain information about her judicial philosophy and political views. When Anita Hill came forward with evidence that Clarence Thomas had sexually harassed her, the hearing room served as a venue for hearing the testimony and determining the facts. If the dispute over Alito's membership in Concerned Alumni of Princeton were susceptible to the development of factual evidence -- which is to say, if there were anything to do about the CAP issue except to say how foul CAP is and how implausible Alito's claims about it is -- then a confirmation hearing could actually be useful.

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So why not have hearings when they're needed and skip them when they're not? For the garden-variety Supreme Court nominee -- the kind with a paper trail that we know he or she's never going to address with any kind of candor -- it sure seems that the concept of an automatic hearing has outlived its usefulness. We confirmed Supreme Court justices without hearings until 1925, and we didn't hold hearings regularly until the 1950s. As Joe Biden said Wednesday, maybe it's time to try the old way once again.


Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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