Legal experts and former administration officials from both parties said today the Supreme Court confirmation hearings have become far too circus-like and substance-free, resembling a law school exam cram session more than an important test of a nominee’s judicial philosophy.
Panelists at an American Constitution Society for Law and Policy luncheon this afternoon differed on the right sort of justice, but agreed the televised Senate Judiciary Committee hearings have dramatically shifted the types of nominees presidents put forward. They predicted that Solicitor General Elena Kagan will give similar bland answers to those put forth last summer by Sonia Sotomayor and by John Roberts during the Bush presidency.
You know the scene: Senators who don’t often get to speak freely on television give long-winded opening statements that don’t leave the impression they haven’t already made up their mind on how’ll they vote on the nominee in question. Meanwhile, the nominees offer little to no insight into their own personal preferences, dazzling the group instead with their vast understanding of judicial precedent and saying all the right things, thanks in part to weeks of coaching from a White House war room.
“These hearings are a joke,” said Thomas Wilner, counsel at Shearman and Sterling who served as counsel of record during two key Guantanamo detainee cases in recent years. “It’s not an open debate anymore, it’s become a sham process and I just don’t think it matters much because the Senate is too partisan.”
Wilner said the process has forced presidents to nominate professor types who can speak with confidence about 50 to 100 major cases, turning the hearings into a sort of law review for “people in the Senate who really don’t know what they are talking about.” The crowd of lawyers, law students and academics attending the panel at the National Press Club laughed and applauded.
Panelist Walter Dellinger, the former solicitor general under President Bill Clinton who also served in the Clinton White House, agreed the process isn’t ideal. He lamented that more presidents are choosing professorial types instead of considering governors or people outside the standard legal world. The hearing process “terribly distorts the kind of person that ought to be the nominee,” he said.
Dellinger suggested Supreme Court justices serve an 18-year maximum term, saying he wouldn’t want anyone on the court “who has not had his or her midlife crisis.”
Kagan’s hearings start June 28. Check out our coverage here.
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