Bench Memos

Confirmation Hearings as Teachable Moments

Confirmation hearings today bear little resemblance to those that antedate the 1980s. Today’s circus of search teams, handlers, and bleating factions is the product of the tectonic shifts in constitutional law and adjudication that have transformed the Supreme Court into a consummately political body. One would think that a clever senator might take the opportunity to use the hearings to instruct American citizens in just how this is so. The approach to this could be quite simple. It would make for dramatic and, more important, meaningful hearings.

A well-informed senator could ask the nominee not whether she agrees with, say, Roe vs. Wade, but just what its holding is, when combined with other major abortion cases. That’s all, to begin with — a perfectly reasonable question, and one a Supreme Court nominee should surely be able to answer. An honest answer — to which a nominee should be held — would make clear that the grim circumstances in which an abortion may be had are far more numerous than the vast majority of Americans would support, were they given the right to have a say in the matter. The senator might then ask the nominee — again, quite reasonably — how she thinks the Constitution came to guarantee such a thing: not whether she agrees with the holding, exactly, but whether she can explain the nature and validity of the constitutional reasoning in the case. The silences would be as instructive as what the give-and-take.

And there would be no need for our clever senator to be constrained to the issue of abortion. There are dozens of cases that have inflamed the culture wars and shown Court observers just how the Court in fact governs us, quite absent our consent. A series of questions that begin simply by asking the nominee to state the holding of a case could prove to be a grand and worthy exercise in civic education. To give but one more example: Kennedy vs. Louisiana (2008), in which Justice Kennedy for the Court held the death penalty to be unconstitutional for almost all crimes but murder. After a clear and concise statement of the holding, the nominee could be asked how she thinks the Constitution mandates such a thing. And for purposes of clarity, our clever senator could recite, at a propitious moment, the truly shocking and stomach-turning details of this child-rape case and ask again just what in our Founders’ Constitution precludes the application of the death penalty in such a case. It would not be an invitation for the nominee to reveal her views, but rather an opportunity for her to explain to the august assembly how the majority came to its decision. That would do quite nicely: Just the facts, ma’am. Oh, and does the nominee, as a legal scholar, see the reasoning as problematic? If she chooses to answer, fine, but fine also if she chooses not to. Done well, or even not so well, such questions would transcend political theater and allow senators to live up to their lofty constitutional obligations.

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