WHAT AMERICA IS HE TALKING ABOUT?:

UNANSWERED QUESTIONS (Jeffrey Toobin, 2006-01-23, The New Yorker)

This studied reticence is similar to that of most Supreme Court nominees since 1987, when Robert H. Bork gave extensive and candid testimony about his legal philosophy and political views. Members of the Judiciary Committee conducted a high-level debate with Bork on civil rights, abortion, and the right to privacy—and the full Senate rejected him by a vote of 58–42. That experience has led to a belief that, for nominees, the less said the better. As Arlen Specter, the chairman of the Judiciary Committee, observed last week, “The hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed.” By that standard, if only by that standard, Alito probably said enough. Hapless committee Democrats interrupted their speechifying long enough to run into Alito’s stonewalling on almost all the important constitutional questions, so they hectored him on smaller points, like alumni politics and his failure to recuse himself in a case where, theoretically, he had a financial interest.

But if the Senate had a more transparent and searching confirmation process, the Supreme Court would probably be similar, though not identical, to the one we have now. Bork lost not because he answered but because of how he answered; a majority of senators saw him, correctly, as being outside the political mainstream of his time. That wouldn’t have been true for at least four of the six nominees confirmed since. If Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer had forthrightly answered questions about their judicial philosophies, they almost certainly would have been confirmed anyway; all of them belong in the large middle ground of American politics.

That's ridiculous. The Kennedy and Souter nominations would have been withdrawn before they were voted down by the Republic Senators and it's not even particularly likely that Bill Clinton could have withstood his nominees explaining their views of the Constitution and the Court forthrightly.

Posted by Orrin Judd at January 20, 2006 1:42 PM