Able To Withstand Nuclear War: Senate Confirmation Hearings
By Pejman Yousefzadeh Posted in The Courts — Comments (6) / Email this page » / Leave a comment »
We read that Senator Joseph Biden is disillusioned with Senate confirmation hearings for Supreme Court nominees and thinks they ought to be done away with. Quite right. Considering the fact that most of the confirmation hearings are taken up by the most blatant kind of grandstanding on both sides, few if any who look to the hearings as a source of enlightenment can argue with a straight face that they ought to be preserved.
And yet, Senator Biden's Saul-on-the-road-to-Damascus moment notwithstanding, they shall be preserved. Let us examine why.
The most casual observer of Congress knows that the institution is jealous and zealous about protecting its oversight functions. Jealousy and zealotry are understandable in a town like Washington, DC where one almost has to overcompensate in the pursuit of power if only to keep the power one already has. But it is jealousy and zealotry nonetheless. Since the oversight function loses its capacity to influence and therefore loses its gloss of power if exercised solely or primarily in secret, it is only natural that Senate hearings--such as the ones conducted for Supreme Court nominees--continue in public and under the full glare of the television news cameras.
Beyond the institutional interests in keeping Senate Supreme Court nomination hearings alive, there are the interests attendant to the vanity of individual Senators to bear in mind. Are we really to believe that individual Senators will foresake the chance to play to their various constituencies with the public policy statements they are bound and determined to make while ostensibly "questioning" the nominee? Are we to buy the notion that individual Senators will give up the spotlight where they can pass themselves off as the greatest Constitutional scholars since Holmes, Brandeis, Cardozo and Frankfurter? Sure, Joe Biden may propose the scrapping of confirmation hearings. But put a microphone in front of the Senator and he will revert to form. Senator Biden is no shrinking violet, not even in respect of the principle he newly espouses.
This observation may seem a mite cynical. If you wish to argue against it and disabuse me of my jaded outlook, feel free. I'd love to think that we live in a world where the ridiculous exercise of Senate confirmation hearings could be viewed for the farce that they are and unceremoniously dropped. But the most dangerous place in the world is that region between a Senator and a microphone. And for both institutional reasons and reasons having to do with individual vanity ("my favorite sin," the Devil was once heard to have said in an otherwise forgettable movie) the inhabitants of that August Body will not soon countenance the confiscation of those microphones--even if it comes at the suggestion of one of their own.
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Able To Withstand Nuclear War: Senate Confirmation Hearings 6 Comments (0 topical, 6 editorial, 0 hidden) Post a comment »
He's playing the moderate. Expect this to continue with the odd hiccup for the next two years and three or four months, anotherwards until poor primary returns suggest to him what the rest of us know...he's pretty much unelectable. All kidding aside, he's not an idiot. There will be a couple to seemingly viable candidates leaning hard Left, perhaps Howard Dean but with plenty of competition. As with Hillary, Biden is refusing to compete with other potential candidates to see who can come down the furhtest from the political center and is attempting to position himself as something of a centrist, even if his voting record suggests otherwise. It could shape up as the most interesting of contests, with a couple of almost fringe left Democrats fighting a number of faux moderates in Hillary and Biden as well as the very intriguing Mark Warner.
The Republicans got the Dims' number after the Bork fiasco. The Dims have to play to their constituencies, so they have to say certain things in certain ways to satisfy whatever interest group(s) they are trying to mollify, however weird or wacky it comes out during the hearings. So, now we have Dims saying predictable things, and Republicans have the counter moves all worked out. Observe that, given several weeks to dig up dirt, and finding nothing, the Dims still went through their stylized Kabuki rituals.
If the Dims would drop the pretense, they would lose their constituencies, but could gain somewhat with the general public, but don't count on it. In fact, hearings such as this would then exhibit little difference between the parties, as in the Ginsberg hearings.
It was a mistake to skirt the issue with Meyers (a pun is the lowest form of humor). Given a solid citizen with solid credentials as a SCOTUS candidate, we now have the Dims where they must act with comity or appear ridiculous. There are several situations when a person cannot afford to appear ridiculous, and the Dims touched all the bases in the ridiulous league during the last few days. And all the people saw it, not just the target constituencies. Joe Biden is pretty slow, but this is starting to sink in with him, hence his remarks. Heck, it might even sink in with Leahy, DiFi, and the hero of Chappaquiddic, given enough time.
That's a really good idea. FWIW, I think the hearings are an important opportunity for senators (and their respective parties) to really unpack their politics. It's a rare time when people actually the time to lay out a philosophy of government. If we could get rid of the mugging for the cameras and retain the space for articulation, it'd be ideal.
"If we could get rid of the mugging for the cameras..."
I will disagree with you. I think Biden was dead serious. While your characterization of the Senators is spot on, I don't think they would hesitate to trade the spotlight in exchange for defeating a nominee of Alito's ilk. Think about it. If there were no hearings and no testimony (from the nominee or witnesses on his behalf) any senator would be free to make even wilder accusations about a nominee's background, beliefs, etc. One of the chief reasons the attacks on Alito didn't work, along with the fact that they were outrageously stupid, was because he was so adept at defending himself and clarifying his positions. Senator Biden and the rest of the Democrats are well aware of this now after poor showings in the Roberts and Alito hearings. They realize the old attacks no longer work. The Republicans have evolved and they have stayed the same.
Although they are painful and infuriating to watch most of the time, the hearings are the most valuable weapon Republicans have to fighting the demagoguery of the liberals in the Senate.
The Senate should continue hold hearings on judicial nominees but all cameras and broadcast equipment will be banned. The public can continue to be informed by being able to read the official record and/or transcript of the hearings but Senators and witnesses alike will lose the ability to mug for the cameras (which takes a lot of the emotional punch out of this nonsense) while still exercising their oversight function.