The 2008 Bench Press

Today it's impossible to tell where prospective justices stand on some of these issues. The modern confirmation hearing has become kabuki theater, in which members of the Senate ask questions to which they already know they will not get answers. The nadir of this advise-and-consent travesty came when Clarence Thomas insisted he had never given any thought to whether Roe, the most contentious decision of the 20th century and the one which has been the litmus test for the far right for 35 years, had been correctly decided.

Republican presidents have made all but two of the appointments to the Supreme Court in the last 40 years. But the result has not yet been the ultraconservative body dreamed of by the right wing, although there is no doubt that since Justice Sandra Day O'Connor was replaced by Samuel Alito, and Justice Roberts took over as chief, there has been a move in that direction. Men and women change in the job. Their view of the Constitution, a document whose interpretation is more art than science, often expands. Perhaps they can see the bigger picture from that neoclassical temple in Washington.

Maybe that's why we don't pay enough attention to the court: because it exemplifies the long view, and Americans are of the moment. So, too, are politicians. Their court appointments are too often an attempt to mollify supporters. But all people live with the results, whether the results are the expansion of rights and liberties or their diminution.

The next president will probably have the opportunity to appoint several justices, and therefore voters have the right to know precisely how the candidates will think about that monumental task. But no more pandering shorthand: cross-examination is in order. Which decisions in recent history have they admired, and why? If they favor strict constructionists, how can they support Brown, which was seen as judicial overreaching? Leaving the question of legal abortion aside, should Americans expect a constitutional right to privacy? Are there any circumstances under which execution is not cruel and unusual? The time for questions is not when the president is standing at the podium with a justice whose term may last for decades. It's when we're trying to decide who gets to stand at the podium and therefore who gets to sit on the court.

© 2008