As the Senate Judiciary Committee considers Solicitor General Elena Kagan’s qualifications for a seat on the nation’s highest court, staffers and pundits on both sides of the aisle churn out a constant stream of papers and articles arguing Kagan’s case one way or the other. The more of them I read, and the more of the process I witness at close range, the more I wonder: what’s the point? Not just in this case (when Kagan’s confirmation is virtually guaranteed) but in almost any case imaginable, I propose that the judicial confirmation process has reached the point at which it is nothing more than an elaborate political dance. Here’s why.
The Senate side has been buzzing this week. General Petraeus’ hearing and confirmation to replace Stanley McChrystal as commander of US forces in Afghanistan; the death and subsequent lying in repose of Senator Robert Byrd; the general flurry that accompanies preparation for recess. Without a doubt, though, the biggest deal for us nerdy political-academic types has been the Judiciary Committee hearing on Elena Kagan’s nomination to serve as an Associate Justice of the Supreme Court. (In case you didn’t spend the entire week watching the live webcast, you can catch the videos here. A full transcript will be compiled after the hearing concludes.)
Supreme Court confirmation hearings are incredibly involved. The grueling days that the nominee and members of the Judiciary Committee spend in the hearing room comprise only a sliver of the effort that the hearings represent: weeks of gathering and reviewing documents, the preparation of questions and completion of questionnaires, and then, once the hearing has begun, the constant monitoring of and commentary on every word spoken in that room. The nominee answers a question—or, more often than not, doesn’t answer a question—and within 45 seconds an army of staffers, interns, reporters and commentators is combing through records and compiling statements to tell America about (1) the nominee’s sparkling wit and humor; (2) how much better and/or worse this nominee is than all previous nominees; (3) how the nominee’s answer (or lack thereof) belies everything he has ever said before; and (4) all the terrible things that will happen to America if this nominee is confirmed.
It’s a sight to behold. For the most part, it’s also pointless. Absent the discovery of some radical anomaly in the nominee’s background (which is highly unlikely), and notwithstanding the effects that her radical views could have on the direction of the Court and the future of the country, Elena Kagan will be confirmed as the next Associate Justice of the United States Supreme Court. Because the votes are there. And if the votes weren’t there, we would be working with a different nominee.
Let me put it this way. The Constitution gives power over federal judicial appointments to two entities: the executive, in the person of the President, and the Senate. The President has the privilege of appointment; the Senate provides advice and either grants or withholds its consent. But the President isn’t stupid. (Shhh. I mean any president, in general, with respect to nominations.) Given the chance to fill a seat on the Supreme Court, he will obviously look for someone who shares his general political and judicial philosophy, but he is also going to be aware of the vote count. The way I see it, a president with an overwhelmingly friendly Senate can pretty much nominate whomever he wants. As the vote margin narrows, the nominations will get more moderate. In the relatively rare event that a nominee fails to muster the expected level of support (a la Harriet Miers) and looks likely to fail, he’ll pull out quickly and the President will put forward someone else—someone with the votes to pass.
I’m going to hazard a guess that the current state of the confirmation process can be traced to 1987. Whatever they ought to have learned from Robert Bork’s failed nomination, the lesson that he ended up teaching every subsequent Supreme Court nominee is: say absolutely nothing of substance unless it’s already undeniably clear in your record. (Kagan, in typical overachiever style, won’t even do that.) And the result is that the evaluation of Supreme Court nominees by the Senate has become essentially meaningless. In the words of my friend David, the Senate has become institutionally incapable of effectively assessing the fitness of a Supreme Court nominee—because the hearings won’t tell Senators anything about the nominee that they didn’t already know. Deprived of the ability to learn about the candidate, the Senators fall back on what they know about the nominating President. Which means that the evaluation process still occurs, but it occurs pre-nomination, and it has a lot more to do with the political landscape than with the nominee himself.
In the meantime, Congressional staffers will keep writing papers. It’s what your tax dollars pay them to do.
Miriel Thomas Reneau is a member of the Humane Pursuits editorial board. She has served as an ISI Honors Fellow, a John Jay Fellow, and an American Enterprise Institute policy analyst in constitutional studies. She endures many a sleepless night, though reports differ on whether this is due to her concern over federal courts’ equity jurisdiction or her addiction to caramel lattes. In her daytime hours, she can be found defending St. Augustine against Calvinist co-optation and T. S. Eliot against everyone.