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Outside editorial: Stop making Supreme Court nominees duck and dodge

Posted: Wednesday, July 14, 2010

The following editorial appeared in the Chicago Tribune:

So what did Americans learn about President Obama's pick for the Supreme Court from the Senate Judiciary Committee's hearings?

They learned that Elena Kagan can joke about Jews going to Chinese restaurants on Christmas Day. That she thinks a federal requirement that citizens eat specified amounts of fruits and vegetables would be "a dumb law." That she doesn't have a preference between the two hot guys in the new "Twilight" movie.

They also learned a little about her judicial philosophy. But not very much. Kagan paid the usual tributes to judicial restraint, impartiality and deference to the other branches of government. She demurred at the idea of letting personal values intrude into deciding cases: "You're looking at law and only at law."

But the legal scholar who once derided Supreme Court confirmation hearings as "a vapid and hollow charade" did her best to ensure that hers fit perfectly into that tradition. She deflected every attempt to get her to reveal how she may come down on the great issues that await her on the court.

Avoiding any gaffes, and displaying humor, charm and intelligence, Kagan came through the confirmation hearings with flying colors. She left no doubt that she can hold her own with the current justices in legal understanding and analysis. Kagan passed the same tests as John Roberts, Samuel Alito and Sonia Sotomayor. Barring some unforeseen discovery, she deserves to be approved by the Senate.

The hearings themselves, though, didn't fare so well. Their chief educational value was to confirm that they really have none.

Make that "re-confirm." Ever since 1987, when Robert Bork participated in a stimulating discussion of his distinctive approach to constitutional interpretation - only to be rejected by the Senate - appointees have chosen to give their questioners as little information as possible, as pleasantly as they can. Senators have taken the opportunity to give long-winded speeches in the guise of questions for the nominee, to show how wise the senators are.

So it's time to retire this frustrating ritual to the Smithsonian, where future generations can marvel at how long we hung onto it.

That wouldn't be such a radical change. In fact, it would be a return to what was the norm until well into the 20th century. No nominee agreed to appear before the Judiciary Committee until 1925. It wasn't until 1955 that the committee began requiring an appearance by every prospective justice.

There is no means short of waterboarding that can force appointees to confess their true beliefs. Senators would be far better off ransacking their writings, speeches and judicial opinions (if, unlike Kagan, they have served on the bench) for illuminating clues. They can also invite people with knowledge of the nominees for their impressions, pro and con.

Would relying exclusively on these sources of information be any more enlightening than extended interrogation of nominees? Probably not. But it would sure be a lot less time-consuming.

It would also preserve the only truly helpful source of information about the nominees' approach to judging: what they do after they are confirmed.



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