Once again I return to the process, not the substance, of how the Senate confirms Supreme Court nominees. The headline of the day seems to be "Sotomayor Avoids Pointed Queries," but any of us could have written that headline days ago. We all knew that would happen; it's a direct result of the way the Committee has distorted the confirmation procedure.
I've said that before, but today's tale regarding questioning by the Demublican Senator Arlen Specter is a classic illustration of the problem. Specter presents a long list of questions about the nominee's views on a variety of issues, each potentially representing a vote against the candidate if she answers the "wrong" way. Naturally, nominees and their political handlers have learned the price of honesty, so for decades now, no nominee, whether proposed by a Republican or a Democrat, has any choice but to "avoid queries." That's what makes the process such a travesty. Specter himself admits that Sandra Day O'Connor was the last nominee who actually answered questions; and that was in 1981, folks!
"Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they walk across the street?" laments Specter. No, Senator, but it's not a bad thing, because the alternative is that the nominee answers each question about her views on the issues straightforwardly, the Senate renders its thumbs-up/thumbs-down based on these political criteria, and in the end, it's the legislative branch that has pre-cooked the Court's views (or attempted to). As Sotomayor tried to point out, that's not separation of powers.
Another time-waster increasingly used by Senators over the years is to pose hypothetical questions. Again, it seems Sotomayor's replies to these has been sensible; that she'd need to know the details of the case. In law, precedents can be brought to bear, but each case is dealt with in terms of its own unique facts. That's especially true for The Supremes, who don't hear a case unless it presents an issue they think is unique (or requires revisiting).
I'm tempted to think Specter is tilting at this windmill precisely because he wants to play up how pointless the exercise has become. But his advocacy of having Supreme Court proceedings televised casts doubt on that theory; the Supreme Court is not, or at least should not be, the Court of Public Opinion.
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