Fixes Considered for 'Broken' Supreme Court Confirmation Process

Samuel Alito's elevation to the U.S. Supreme Court is nearly a foregone conclusion despite serious misgivings about him by Democrats and, reportedly, a few moderate Republicans. But that hasn't stopped a partisan fight from casting an unflattering light on the judiciary confirmation process as a whole.

The Senate Judiciary Committee confirmed Alito Tuesday on a 10-8 party-line vote. Most notably lacking in the panel tally was any suspense surrounding where its members would come down. Even a one-week delay in the committee vote failed to whip up any further mystery surrounding the outcome.

Few additional surprises are expected during the full Senate debate, which was beginning Wednesday. A final vote on the nominee could come as early as Friday and again is expected to split down party lines.

After the confirmation hearing for Alito wrapped up on Jan. 13, Delaware Democratic Sen. Joseph Biden, who voted by proxy against Alito because he is abroad monitoring Wednesday's Palestinian election, called the system "broken." At least one Republican who backs Alito's confirmation agreed with Biden's assessment.

"I find myself tending to agree a little bit with Senator Biden, who questioned whether such a process really has a meaningful purpose," Texas Republican Sen. John Cornyn said just before announcing his vote for Alito on Tuesday. "I don't think the hearings should be a place to dump one's political or ideological outbox."

That description largely fit the Alito hearing, and to a lesser degree, the one for Chief Justice John Roberts in September, observers say. During the Alito hearing, many Democratic senators spent more time discussing how they would have voted in legal disputes and their thoughts about Princeton University, Alito's alma mater, than actually asking Alito questions — ostensibly the reason for the hearing.

Republican senators weren't particularly inquisitive either, opting instead to extol Alito as a serious-minded, intellectually gifted jurist who is "not a racist."

As a result, critics say, the public did not learn anything more about the 3rd Circuit Court of Appeals judge than they would have by reading the numerous opinions he authored in 15 years on the bench. Not learning more, they say, may be all but built into the process.

"What this has done is set a new standard of evasiveness," said Richard Davis, author of "Electing Justice: Fixing the Supreme Court Nomination Process." "That will obviously give heart to White Houses in the future: It is possible to get by the Senate."

Davis, who teaches political science at Brigham Young University, said the most fundamental arguments against holding hearings are that it is almost universally agreed upon that judges' personal views should not affect their jurisprudence and judges should not forecast how they would vote on specific issues.

In fact, the late William H. Rehnquist initially refused to sit through the hearing process when he was nominated to be elevated from associate justice to chief justice of the United States.

"He said, 'Look, I have this record, I've been on the court for 14 years,'" Davis said. "One could make the same argument for federal judges like Samuel Alito."

Observers add that once questions regarding a nominee's personal views or hypothetical cases that may one day reach the court are taken off the table, not much is left to discuss.

"The nominees have learned not to say very much. They've simply learned in the wake of Bork — and now they go through murder boards that have them rehearse every possible question — they've learned to say relatively bland or banal things that don't give away very much," said Perry Dane, professor at Rutgers School of Law and one-time clerk for the late Justice William Brennan.

The highly political nature of the confirmation process has caused administrations to be extra cautious about their nominees because fumbles and surprises do occur, as evidenced by Justice Clarence Thomas, withdrawn Bush nominee Harriet Miers and rejected candidate Robert Bork, whose failed nomination is viewed as a playbook of "don'ts" for subsequent nominees.

"No nominee to the Supreme Court can answer the questions the senators most want answered," said Dennis J. Hutchinson of the University of Chicago School of Law.

That prudence translates into snoozes for both the hearings and the nominees. Lacking the congenital twinkle of Roberts, who many say charmed the senators as much as demonstrated his intellect, Alito was left to rely on his encyclopedic memory and scholarly dexterity.

"What goes on at the hearings is not particularly well-correlated with a judge's actual job description. Judges spend most of their time writing and thinking, and to the extent they play a public role, they are asking questions rather than answering them," Dane said.

"This is the same dilemma we get into with political candidates: the best leaders are not necessarily the best debaters and the best judges are not necessarily the ones who will perform the best in a hearing," he added.

Dane said based on the current debate over nominees and executive branch efforts to find irreproachable candidates, voters should not expect to see many more personalities like the humorously grouchy Antonin Scalia or the feisty John Paul Stevens in the court's future.

"There is this tendency to pick people who are going to do themselves the least damage at the hearings and to avoid people who might be more interesting," Dane said.

A Constitutional Solution?

"Any nominee coming up here is so coached the process can't work very well," Biden told Newsweek after Alito's confirmation hearing. He suggested doing away with hearings entirely and just holding a full Senate floor debate.

But defenders of committee hearings say they can be useful, even if only in a just-in-case kind of way.

"We have to wait and see what sort of justices the recent appointees turn out to be and where they take the Supreme Court and the country before we can say the process is broken," said Michael Comiskey, author of "Seeking Justices: The Judging of Supreme Court Nominees."

"It is useful to confirm what you thought you already knew. We sometimes do learn new things about their constitutional philosophies, although we didn’t in this case," he said.

While Democratic committee members Edward Kennedy and Charles Schumer were assailed by the right for questioning Alito's integrity, strict scrutiny is called for when the stakes are so high, Comiskey told Such pointed questions would likely get lost in the cacophony of a floor debate.

"We are seeing a turning point in the court. You had to believe certain things in order to rise up in the political ranks in the Reagan Justice Department," he said, referring to both Roberts' and Alito's allegiance during their time in that administration. "With [Justice Sandra Day] O'Connor's seat now going to Alito, we're going to see a big change."

O'Connor, who was nominated by the late President Reagan, has been a crucial swing vote on culture war issues like access to abortion, affirmative action and separation of church and state. The retiring justice has also shown skepticism toward the Bush administration's use of the War on Terror to defend its executive power claims.

While whittling down the process to just floor debates may seem a more attractive option, senators need to get over their curiosity about nominees' personal views, Hutchinson said. Instead, scrutinize the nominee's record and debate it.

"When the Senate tries to use job applications and club memberships as proxies for the nominee's views, they almost by definition trivialize the stakes of the inquiry," he said, referring to Alito's membership in a controversial Princeton alumni group and a job application he submitted to the Reagan Justice Department.

And as much as this may fall on deaf ears on Capitol Hill, committee members need to ignore interest groups, many observers agree.

"What [the abortion issue has] done is galvanize interest groups on both the left and the right, who view Roe v. Wade and abortion as an accessible and profound symbol of the role of government and of the definition of their party," Hutchinson said. "Senators who rely on interest groups as part of their base are beholden in various ways to those groups, and that just automatically creates a polarized process, about which the nominee can say nothing substantial and shouldn't."

"I think abortion fatigue has set in," Comiskey added.

It seems unlikely that the founders, who could not have imagined the advent of television, would have foreseen the judicial confirmation process they envisioned become so partisan or political. But supporters of the current nominee, who reject the use of the filibuster now permitted by Senate rules, may think differently if Democrats take back the White House and Congress.

"For the long-term health of our constitutional system, wouldn't it help to have something that is somewhat more attuned to really trying to get judges who are simply excellent with less care about their ideology?" Dane asked.

Dane proposed that lawmakers look at states that rely on special nominating committees comprising prominent lawyers and legal scholars. In 23 states and the District of Columbia, nominating committees work with the governor in appointing judges to courts of last resort, according to the American Judicature Society. Only eight states rely on partisan elections for their highest courts.

Dane also suggested depriving presidents of their winner-takes-all approach to reshaping the court. Acknowledging the nation's reluctance to tinker with the Constitution, he said he would rather see a system of justice-designates that automatically fill seats as they open up. The emphasis on qualifications would trump ideological bent because presidents and senators would have no idea in advance who was going to be replaced.

Any changes to the system have little chance of occurring as long as the American public remains uninterested in the process, as they seem to have been with Alito, critics add.

"You could say they tuned it out because of what was being offered them," said Ruben Navarrette, syndicated columnist with The Washington Post Writers Group. "So much of this is about feeding the egos of these men and one woman on the panel, who are bright and want to show us all how bright they are."

But, he added, "it is our responsibility and it begins on Election Day."