Suggestions for Serious Supreme Court Confirmation Hearings

Supreme Court confirmation hearings provide little use for the public, and there are better ways to vet a nominee, say several constitutional scholars in a recent ABA Journal article. The Journal's article, "No More Kabuki Confirmations," highlights mounting frustration over the proceedings, noting for example former Sen. Joe Biden's criticism of them as a "kabuki dance." Yale law school professor Stephen Carter, citing Justice Sonia Sotomayor's confirmation hearings, told the Journal that "senators should have analyzed her rulings - all of them, not a handful of cherry-picked controversial ones - and decided whether the author was fit to sit on the nation's highest court. I have read plenty of her opinions and have seen an exemplary and fair-minded jurist at work."

The ABA Journal article also notes Seth A. Rosenthal's 2007 Issue Brief released by ACS, on ways to produce enlightening Supreme Court confirmation hearings. In his Issue Brief, "Tired of Kabuki? Time to Tango: The Case for Litigator-Led Questioning of Supreme Court Nominees," Rosenthal noted, "The view that hearings rarely produce meaningful information isn't held exclusively by liberals. Conservatives who lament the Senate's rejection of Robert Bork - and who continue to seek public re-airing and vindication of the constitutional views that Judge Bork articulated - say the same thing." 

In his Issue Brief, Rosenthal, a partner at Venable LLP in Washington, D.C., suggested a number of methods for reforming confirmation hearings, such as letting lawyers question the nominee and senators offering follow-up questions. "This idea," Rosenthal wrote, "or at least an iteration of it (e.g., bring in outside constitutional experts), has been floated before, but either dismissed or treated cursorily."

In his interview with the ABA Journal, Rosenthal said, "Unlike good courtroom examinations, the existing process doesn't lend itself to fluid, information-producing conversations; rather, it lends itself to stilted questions, nonrevealing answers and minimal or no follow-up."

For more on the Supreme Court nomination process, see video from the year's ACS event focusing on diversity on the federal bench, which included discussion of Justice Sotomayor's confirmation hearings and what they did and did not tell us about her.