Are Kagan Hearings a Waste of Time?

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A Waste of Time? Sen. Al Franken spent part of Tuesday's confirmation hearing sketching his colleague Sen. Jeff Sessions. Alex Brandon / AP

"We have to have a little back-and-forth once in a while,” said Sen. Orrin Hatch, a Utah Republican, when a Democratic colleague complained that he was interrupting Elena Kagan’s responses, “or this place gets as boring as hell."

Indeed it does. Within a couple of hours after Supreme Court nominee Kagan began her long-awaited question-and-answer session with the Senate Judiciary Committee on Tuesday morning, most of the 19 committee members had left the chamber for much of the time. The spectator gallery was far from full—especially after Sen. Herb Kohl, a Wisconsin Democrat, dispatched people to the exits by announcing: “Let’s talk about antitrust.”

The rather unilluminating hearings this week call to mind proposals by confirmation experts that the Senate altogether abandon testimony by judicial nominees. Congress could return to the practice that it followed until the middle of the last century, when it voted based on judicial nominees’ records without calling them to testify at all.

“For most of American history, the Senate considered Supreme Court nominees without soliciting [the nominees’] input,” wrote Benjamin Wittes, of the Brookings Institution, in his 2006 book, Confirmation Wars, “Politicians considered it an intolerable affront to judicial independence to ask a nominee how he would vote on a matter; to answer any such question was unthinkable.”

It was not until the high court’s epochal decision desegregating public schools, in 1954, that senators began to be emboldened to press nominees by asking directly or indirectly about what they would do if confirmed. It was an effort to exert some influence on a judiciary that--since Brown v. Board of Education--has assumed a far more commanding role in setting national policies via interpretation of the Constitution. This progressed over the decades to the point that confirmation hearings have become “grand mobilizations of the political bases of both parties, along with their affiliated interest groups and sympathetic academics,” Wittes wrote.

The best counterargument is that confirmation hearings are the only chance that the American public will ever have to assess a Supreme Court nominee who will serve for life. True enough. But how much assessing is really going on? Polls suggest that fewer than 20 percent of the public can even name Kagan as the current nominee.

While Hatch was chastised by Democrats on Tuesday, his interruptions of Kagan were really quite gentle. And most other Republicans appeared to have given up on the idea of challenging the nominee with hostile questions, not to mention on any hope of preventing her confirmation.

Instead, Hatch spent much of his 30 allotted minutes not seeking real responses from Kagan but rather defending against Democratic attacks on the big decision by the five more conservative justices in January to strike down legal limits on campaign spending by big business. Democrats, including Sen. Russ Feingold of Wisconsin, countered by returning again and again to what a terrible, activist, pro-business, antipeople decision it had been.

And Kagan easily avoided any indication whether she thought it had been a good decision or a bad one, even though the justices had rejected the arguments that she had made as Solicitor General in the case on behalf of the Obama administration. Instead of disclosing her own views, Kagan settled--with poise, self-assurance, and occasional flashes of humor--into the familiar pattern followed by all recent nominees: patiently summarizing what the Supreme Court had said about the specific questions posed to her while commenting only in the most noncommittal, general, soporific terms.

Meanwhile, the senators settled into their own familiar pattern of making little speeches about their pet issues, thinly disguised as questions for the nominee, while staffers passed out propaganda full of carefully selected, often-out-of-context quotes supporting and opposing the nominee to reporters.

As the hearings drag on, a rhetorical question posed Monday by Sen. Tom Coburn of Oklahoma seems especially relevant: "Why should we have this dance if we're not going to find out real answers about real issues about what you really believe?"