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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like civil rights and abortion doesn’t tell us how she would address unsettled areas of law or when she would allow outdated laws to change.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.

There are ways out of this legal box. Senators might challenge the very “prejudging” concept. For example: Why should a nominee who has portrayed herself as an impartial agent of the law be worried about judging a case in advance? Isn’t this person committed to fairness in future cases, whatever her past rulings?

But while it is surely possible to ask more penetrating questions, the reality is that lawmakers tread fairly carefully during the appointment process, fearful of being portrayed as hectoring or hostile to judicial independence. In any event, no modern nominee has been rejected strictly for being evasive.

Some reformers have called for a second, more radical way of changing our appointments process: Why not do away with public questioning of nominees altogether? If the bright lights and cramped stage of the Senate Judiciary Committee prompt bland and guarded answers, why not limit the questioning to more free-wheeling and frank closed sessions? Indeed, this “secret session” model was the norm throughout the 19th century and was still in use as late as the 1950s.

But this approach might further distance the public from our judicial system. Closed confirmation hearings would be unlikely to induce a broad public debate about the court, the Constitution and federal law. Instead, any resulting discussion would be highly susceptible to being charged by politicized and partisan rhetoric, since individual Senators would not be tempered by a nominee’s presence or voice.

A third way of improving how we select justices is the most promising. Instead of identifying a single nominee (and perpetuating the myth that a single person is best fit to serve on the court), presidents should submit a short list of perhaps three suitable persons. The Senate, through both public and private proceedings, could then vet each of these candidates in turn, winnowing the list and ultimately confirming one person acceptable to both branches.

Such a change, requiring an amendment to Senate rules but not the Constitution, would comport well with a pragmatic judgment that the appointment process should serve as a kind of job interview with Americans and their representatives. This move might better encourage nominees to use their televised, public remarks to educate the citizenry and to speak widely and eloquently about how they apply constitutional and legal principles.

The multiple candidate approach might also lead presidents and appointees to take more risks by, respectively, nominating nontraditional figures (such as those with extensive political experience) and taking more seriously the prospect that stonewalling questions might generate real political costs. A judicial nominee who knows she will be directly compared to a candidate who could be more forthcoming will have greater incentive to provide answers with substance and bite.

In the 21st century, we need a Supreme Court nomination process that is more serious than political theater but more publicly accessible and useful than a law school seminar. We need the Senate to use its “advice and consent” role to present and challenge multiple candidates, each striving ambitiously and openly for a single coveted job.

Bruce Peabody is an associate professor of political science at Fairleigh Dickinson University and the editor of the forthcoming book “Judiciary Under Siege.”

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