Senate Confirmation Battles--Pining for the Good Old Days?

Posted on July 14, 2010 by Kendall Gray

As reported by Erin Miller at SCOTUSBlog, the committee vote on Elena Kagan's Supreme Court nomination has been delayed until next week, ostensibly to provide additional time for senators to parse her written responses.  I suppose that's little enough to ask in exchange for a most prestigious job for life, but color me cynical.  No matter what the answers say, we will be treated to senators in front of television cameras opining that the same person is either an insufferable "judicial activist" or unsurpassed "legal scholar," and one already knows which senators will hold which view.  One suspects, therefore, that ideology has become disconnected from reality, no matter which ideology is held.

The cynic amongst us, therefore, would say that senate confirmation hearings are nothing more than an empty Kabuki dance--and that with bad dancers.  All the players assume their accustomed rolls and say their accustomed lines while performing their accustomed movements.

The high minded might counter that the Senate has a constitutional obligation to carry out as part in the separation of powers--at its height to save The Republic from life tenured legislators run amok.

Presumably, that is why the language of the high minded can become so heated, to wit, this statement about The President's nominee:

It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a person could be put in the Court, as I believe she is likely to be. She is a muckraker, an emotionalist for her own purposes, a socialist, prompted by jealousy, a hypocrite, a person who has certain high ideals in her imagination, but who is utterly unscrupulous, in method in reaching them, a person of infinite cunning. . . . of great tenacity of purpose, and, in my judgment of much power for evil.  

I mean, if half of that were true, who would nominate (much less confirm) such a scoundrel?  But can even half of it be true?  And have we now made such a mess of the confirmation process that such incivility occurs without condemnation? 

But don't answer yet.

That statement is not about President Obama's nominee.  And the nominee was not even a woman.  I cheated.  I changed the gender in the quote. 

The quote is about President Wilson's nominee.  And the nominee's name was Louis Brandeis. 

Yes, that Louis Brandeis. 

The person who hurled such calumnies at the future Justice Brandeis was William Howard Taft, who probably wanted the appointment for himself and who later served as Chief Justice on the same court with this Brandeis "muckraker." 

And yet The Republic managed to survive the muckraking creator of the Erie Doctrine.  (The Republic has, to date, always done so).

The point: we've been doing confirmation wrong for a long time.  The amount of wrongness just waxes and wanes with the political temperatures of the times.

But it is still wrong, even if well-established wrong.  And it is a wrong lawyers have special responsibility to address.  Ours is the job of promoting respect for the judiciary, even a judiciary with which we sometimes disagree. 

How would this process look if self-serving Senators were held accountable by members of the bar in their states?  And I wonder, do we lawyers have the judgment to recognize opportunistic Kabuki dancing, even when committed by those of our own political stripe?

We now return you to our regularly scheduled appellate blog.

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