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Confirmation Kabuki: Peeling back the mask

Randy Barnett recommends the Legal Affairs Debate Club on how the U.S. Senate should question Supreme Court nominees in confirmation hearings. This debate features Erwin Chemerinsky (Duke) and Brannon Denning (Cumberland).

Barnett thinks Denning has a strong start, and I have to agree, given this passage:

"...[R]ecent Supreme Court confirmation hearings have a Kabuki quality about them. Senators ask vague, abstract questions; nominees attempt to respond in a manner calculated to communicate the least information without offending the questioner. As a result, recent nominees to both the Supreme Court and the courts of appeals all admire Justice John Marshall Harlan II, judicial restraint, and all agree that Korematsu, Plessy v. Ferguson, Lochner, and Dred Scott are the worst Supreme Court decisions ever handed down. And senators have demonstrated a reluctance to be satisfied with nominees' attempts to differentiate their personal views on a matter, like abortion or gay rights, with their acceptance of the court's decisions in these areas as a matter of law. Some senators, in fact, have even shown a reluctance to accept the distinction you proffer between stating one's views and not committing one's self to declaring an intent to vote one way or the other.

Thus, I'd ask what kinds of questions would you propose that could plumb a nominee's views without asking him to commit, in advance, to particular positions? And what sorts of answers should be seen as disqualifying."

I, of course, cherish a fantasy where voters not only submit questions but staff the panel.  Much as voters dramatically improved the quality and discourse of the questions and answers in the 2004 presidential debates, I suspect we could make a huge difference here as well. I long for authentic confirmation hearings devoted to the interpretation of the Constitution and the practical application of law, rather than professional spin and political dealmaking. From all sides.

Barnett has already recruited a handful of interesting comments. Here's hoping some Senate staffers -- or even their bosses -- are listening.

Posted by Product Team on July 26, 2005 at 01:04 PM | Permalink | TrackBack (0)


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