Tired of Kabuki? Time to Tango: The Case for Litigator-Led Questioning of Supreme Court Nominees

Seth Rosenthal
Publication Date: 
September 30, 2007

In "Tired of Kabuki? Time to Tango: The Case for Litigator-Led Questioning of Supreme Court Nominees", Seth Rosenthal, a litigation partner at Venable LLP in Washington, D.C., suggests that as the Supreme Court opens a new term this week, it is time to consider anew how Supreme Court confirmation hearings might be improved. Rosenthal begins by pointing out the widely-held belief that several nominees since Robert Bork -- including Chief Justice Roberts and Justice Alito -- provided the Senate and the public little meaningful information about their jurisprudential views. Drawing on Congressional hearings on matters such as the Watergate and Iran-Contra controversies, Rosenthal revives the idea that the Senate Judiciary Committee bring in experienced outside litigators to take the lead in questioning Supreme Court nominees. Because practicing courtroom advocates, unlike Senators, would be able to devote their undivided time and attention to prepare for the hearings, and because they are skilled at ferreting out information from witnesses, Rosenthal argues, they are likely to be more successful at eliciting illuminating answers from a nominee or, failing that, demonstrating plainly that the nominee has stonewalled. Under his proposal, Senators would still play an active role, but enlisting outside litigators would help them obtain their goal of producing useful information. To demonstrate his proposal in action, Rosenthal offers examples of lines of questioning that might have been pursued to produce meaningful exchanges during Justice Alito's hearing. Rosenthal speculates that, by emboldening Senators and thereby forcing the president to consult with them before making a nomination, his proposal could lead to less rancorous confirmation proceedings.