Advise and Shut Up Already

Let me admit my hypocrisy up front. I've just finished a round of profitable blogging and cable yakking about the confirmation hearings of Judge Sonia Sotomayor. I had a front-row seat and was not upset when I showed up on page one of The New York Times in the background of a photo of the proceedings. (The nominee is the woman in blue to my left.) I have a law degree and was delighted for the chance to dust off some obscure legalese. Now, having so stipulated (that's how we lawyers talk), let me to bite the hand that books me. We need to stop holding Supreme Court confirmation hearings. Put them out of their misery. They have no clear purpose—or at least no useful one. They make everyone involved look bad. They are worse than a waste of time, because they confuse the public about what the Supreme Court does and undermine respect for law and judges. They aren't even good television anymore.

Nowhere is it written that the Senate must cross-examine nominees. That happened for the first time in 1925. President Eisenhower made three recess appointments, meaning that Earl Warren, William Brennan, and Potter Stewart all were seated and voting on the court before the Senate scrutinized them. The first hearing to become a TV soap opera was Sandra Day O'Connor's in 1981—not coincidentally, a year after CNN invented the cable news business. Six years later, the Democrats savaged the hapless (and unrehearsed) Judge Robert Bork. A verb was invented. To bork: to deny a nominee a seat on the high court by portraying him or her as a mentally unstable wingnut.

A half generation later, the folk memory of Bork has combined with warp-speed, saturation media coverage to destroy what meager value the hearings ever had. The theory was that senators needed to handle the merchandise before giving "advice and consent" on the nomination. But now—recognizing the viral danger of YouTube and the like—the nominees arrive on the Hill encased in hard, shrink-wrapped plastic, the kind you can't open without pointed scissors and a kitchen knife. The game (and it is one) becomes an atavistic search for an emotional gotcha moment, a test more appropriate to a hockey goalie than a Supreme Court justice. As long as she did not have a "meltdown," said Sen. Lindsey Graham, Sotomayor would be confirmed. A worthy standard, indeed.

It would be more fruitful, you might think, to focus on her lengthy, Lou -Gehrig–like record of 3,000 cases over 17 years. But no: that was too centrist to be of use to the Republicans, and way too boring and complicated for the Democrats. A close reading of her opinions might have helped senators get a fix on Sotomayor's judicial philosophy and even her views on major lines of cases. But the senators didn't do so, and, where they tried, she just waved away questions as inappropriately specific, since she might have to rule on related matters. Forgive me for getting law-schoolish for a moment, but isn't that—shouldn't that be—the point?

Apparently not. Instead, Supreme Court confirmation hearings consist primarily of people saying things they do not mean, or not saying what they do mean, or ignoring the obvious. This is not good advertising for the basic honesty of judges, which is presumably what we are looking for. In carefully rehearsed sentences, Sotomayor recanted (sort of) her assertion that a "wise Latina" is likely to render "better" rulings than a white male judge. Republicans accepted her semi-apology (sort of), but everyone in the room assumed that she believes it. Similarly, no one professes to favor an "activist" judge, and Sotomayor dutifully denied that she was one.

Of course, Chief Justice John Roberts portrayed himself at his own hearing four years ago as a cautious and judicially modest dweeb. In the intervening years, he has become an Incredible Hulk of "activism." Democrats don't dare admit that they in fact hope Judge Sotomayor will undergo a metamorphosis, too. And she probably will. It's what judges do. In one way or another, all of them are activists, in that they have no choice but to apply the Constitution to a changing world.

All nominees pledge allegiance to the principle of stare decisis (lawyer talk for legal precedent), but constitutional law evolves in response to new facts and social conditions. Conservatives claim to revere precedent but want to ditch Roe v. Wade, in part because of advances in prenatal medicine. Meanwhile, liberals have now embraced the virtues of "judicial restraint" as they decry decisions handed down by the Roberts court. For senators to patiently untangle the jurisprudential from the merely political would be a great public service. The nation would be better off, and who knows, the ratings might even improve.

Fineman Is The Author Of The Thirteen American Arguments.

© 2009