Sept. 20, 2014 SIGN IN | REGISTER

How to Build a Better Confirmation Process

Last week, immediately after the Senate approved Sonia Sotomayor to sit on the Supreme Court, national leaders praised the hearings leading up to this vote. President Barack Obama applauded Senators for giving his nominee “a thorough and civil hearing.” Majority Leader Harry Reid (D-Nev.) hailed the “fair” confirmation process, while the top Republican in the Senate, Mitch McConnell (Ky.), commended his colleagues “for conducting a dignified and respectful hearing,” even as he cast his vote against Sotomayor.

At first glance, we might be inclined to join this judgment that, whatever one’s views about the nominee, the process that vetted her was a success. After all, in questioning and testing Sotomayor, Senators apparently fulfilled their constitutional duty to provide Obama with “advice and consent.” Moreover, Sotomayor received votes from Democrats and Republicans, giving her selection a bipartisan veneer.

But we should expect more from our appointment process. In reviewing a president’s selections, the Senate screens individuals for the most powerful court in the world and holds an extraordinary opportunity to educate the public about our most shuttered branch of government.

Considered against these standards, we can regard Sotomayor’s interrogation by the U.S. Senate as a failure.

Many citizens genuinely interested in learning more deeply about Sotomayor, the Constitution or how law is developed and applied in our country came away from the hearings with an empty feeling. Indeed, commentators in blogs, newspapers and other news and opinion forums have suggested that the appointment process seemed scripted, shallow and even disingenuous: more “kabuki dance” than civic seminar.

Sotomayor’s insistence that good judges interpret the law free of “sympathies, personal views and prejudices” papered over the observation that our sitting Supreme Court justices, presumably each committed to the rule of law, reach dramatically different rulings on issues like free speech, gay rights and federalism. Similarly, Sotomayor’s suggestion that she would merely apply the court’s prior rulings in controversial areas like civil rights and abortion doesn’t tell us how she would address unsettled areas of law or when she would allow outdated laws to change.

Is it possible to build a better appointment process, one that gives citizens a more realistic and useful understanding of what makes a nominee tick?

We might first try asking better questions. Today’s nominees to the Supreme Court have perfected the art of the skillful dodger, especially by raising two, somewhat divergent, reasons for avoiding straight talk. On the one hand, they say they can’t answer hypothetical or general questions about law because judges deal best with fact-rich, context-specific cases. At the same time, potential justices are reluctant to discuss particular cases that might come before the court because this might lead them to “prejudge” legal issues, as Sotomayor put it.

Senators, therefore, must thread a needle: They need to posit questions that are specific enough to be fit for a judicial response, but not so specific that they threaten prejudice.

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