Ed Whelan reports that the Senate Judiciary will hold four days of hearings on the nomination of Judge Neil Gorsuch. The hearings begin on Monday.
The first day will be devoted to opening statements by every member of the Committee and the opening statement of Judge Gorsuch. The nominee is scheduled to testify on Tuesday and Wednesday. Thursday will be devoted to panels of witnesses.
This seems like an excessive amount of time (though it’s consistent with recent practice). The panels strike me as worthless. Has a Senator ever changed his or her mind based on what these partisans say? Are the panels watched by anyone at home?
The nominee’s appearance is clearly of more interest, but is it of any significant value? Maybe in the case of a nominee who hasn’t been an appellate judge for long.
But Gorsuch has been judging for a decade. His record is there for all to examine. Coupled with the visits Gorsuch has paid to each member of the Committee, it provides the members with a more than sufficient basis to vote up or down.
Felix Frankfurter, who became a Justice in January 1939, was the first Supreme Court nominee to testify at a confirmation hearing. Judicial wars raged in the second half of the 1930s, and this may have been what prompted calls for Supreme Court nominees to testify.
Since mid-1990s, though, nearly all value has been drained from these hearings because, beginning with Ruth Bader Ginsburg, nominees have steadfastly refused to say anything of real interest. They speak only in generalities and platitudes.
They pledge fidelity to the Constitution and the rule of law. They promise to reach their decisions based on what the law requires, without regard to any personal agenda or policy preference. Few believe they will do so.
It doesn’t matter which Party the nominating president belongs to. The hearings of Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan were equally unrevealing.
The only difference party makes is that is that Democrats are more nasty than Republicans to the nominee of an adverse president. Hostile questioning of Samuel Alito by Ted Kennedy and others led to Alito’s wife leaving the hearing in tears. I’m told that even the unflappable John Roberts was highly irritated by Joe Biden’s questioning, though he never really showed it. Sotomayor and Kagan were treated with more respect.
In all cases, though, the hearings were political theater and little more. Surely that will be the case this time around.
For example, as noted, Monday is reserved for opening statements. These are nothing more than an opportunity for Senators to grandstand.
Two days will be devoted to “questioning.” Few members of the Judiciary Committee remember how to ask a real question (and some probably never knew). The questions tend to be speeches — extensions of the opening statements. And to the extent a question can’t be answered with a platitude, nominees dodge them by asserting that they can’t prejudge the matter.
A return to the pre-Frankfurter practice obviously is out of the question. Given the enormous power of the Supreme Court, the public needs to see would-be Justices jog around the track once or twice before they are confirmed.
But four days? Half a day of opening statements, a day-and-a-half of “questioning,” and a few hours for a panel would easily suffice.
Senators should worry that the more time they spend with a Supreme Court nominee in this kind of setting, the less respect the nominee is likely to have for the Senate once he or she becomes a Justice. They would be well-advised to limit their grandstanding, and this they can do only by limiting the duration of the hearings.