Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The question-and-answer session ended as it began – with nice comments from Senate Judiciary Committee Senators to the Supreme Court nominee and his family. But the 20 hours in between were anything but nice or neat or encouraging to anyone truly interested in the sweep of the law over the grit and grime of politics.
It would be nice if these confirmation hearings felt and sounded more like law school lectures than raunchy and raucous political campaigns. But they do not. It would be nice if Judge Samuel A. Alito, Jr., now probably days away from being confirmed as the next Associate Justice, felt capable of offering more candor and less evasion. But he did not. It would be nice if we knew measurably more about the nominee's philosophies of law and life than we've learned since Tuesday. But we do not.
What we do know is that another Supreme Court confirmation hearing has come and gone without educating us much about a man who is about to get a lifetime seat on the nation's top court. All sides are to blame for this, but in the end, the true loser is the American people because we are the ones who will have to deal with Justice Alito, for better or for worse, long after the current crop of Committee members have gone to the great sound-byte machine in the sky.
The least the Judiciary Committee could have accomplished with Judge Alito under oath was to ensure that we would know more about what we'll be getting from this guy for the next 35 years. And the least the nominee could have done, with the votes in hand to win confirmation anyway, was to give his constituents— the rest of us—the benefit of deeper insight into his core legal beliefs. Instead, predictably, we got gamesmanship from Committee members and petty parsing from the judge. Each side, it seemed, played perfectly the roles history (if not logic or justice) has given to it in this repeating drama.
It must have been strange for Judge Alito, who has spent his whole adult life in the shadow of the law and the halls of courthouses, to be forced to endure hour after hour under Congress' big-top tent. It must have been frustrating to him to have to answer (or not answer) the same questions over and over again and to have to listen to the speeches that preceded so many of the inquiries. This is a man, remember, who is used to brief, succinct arguments about precise legal points. This is a man who has been asking legal questions, not answering them, for the past 15 years.
And it must always be frustrating to Senators to be unable to pin down a witness under oath. Over and over again, for political purposes, Judge Alito, like his predecessors before him, refused or failed to answer perfectly legitimate legal questions. There was no legitimate law-related reason for him to have refused to answer more fully the questions posed to him about presidential power, or the legislative authority, or even the role of the courts in determining constitutional disputes. But he did so anyway knowing that he would he would score political points, or at least ensure political advantage, by saying as little of substance as possible.
No one will ever ask me how to make things better but there's no reason not to try. The Congress and the White House and the nominee ought to agree to the following deal. Congress agrees to limit the hours of questioning in exchange for the nominee's promise to answer more candidly and the White House's promise not to "handle" the nominee by coordinating the now famous "murder boards" that wash all the spontaneity out of the nominee's answers. Each partner in this dance gives up a little political advantage, each gets a little something in return, and the big winners are the citizens who after all have to live with and under the rulings offered by the nominee.
During the Alito hearing, Committee members got to make opening statements and then got 30-minute and then 20-minute rounds of questions followed, for some of them anyway, by additional questioning rounds. But despite their opening statement time, all of them – the Republicans and the Democrats – also used their question-and-answer sessions to preach to the nominee and to the cameras (and the public). Committee members in many instances launched into long speeches before even asking the nominee a single question. All this did was to make the Senators seem like buffoons, lengthen and make more tedious the process, and waste the nominee's time and patience.
Those sorts of speeches during the questioning period of a nominee would end under the Cohen Plan. If a Senator did not ask the nominee at least one question per minute (or within a minute of the end of the nominee's last answer) that Senator would be penalized by losing a minute of his or her subsequent questioning time. The goal ought to be that the nominee speaks more often than the Senator asking the questions, but I suspect that this did not happen to and with Judge Alito during a single questioning session the whole week. No one wants to hear what the Committee members think; everyone wants to hear what the nominee thinks. This part of the Cohen Plan would achieve that goal.
Also gone under the Cohen Plan would be the nominee's emphasis on empty platitudes like "I will judge the case according to the law." These statements sound profound but are as useless and as wasteful as are the political speeches that often precede them. Worse, they disrespect the intelligence of the Committee members and the public who surely know that the phrase "no man is above the law" means nothing more than what any single person believes it does. Under the Cohen Plan, the Committee Chairman would add a minute to the questioning session of the nominee for each time such a silly generality was uttered.
Yes, I know. This would create huge fights over just what constitutes a silly platitude. So what. The Committee members' staffs could get together before the hearing and compile a list of the 100 most inane phrases— like "our Constitution applies in times of peace and in times of war"— which would then be applied to the nominee's remarks. And why would these staff members have the time to do this? Because they would not be spending their time distributing silly propaganda leaflets to reporters covering the hearing or pandering to special interest groups hoping to have an impact on the proceedings. If they collected in one place all the junk email and handouts that the Alito hearing generated, computers would crash from memory overload and the bonfire would light the sky.
Finally, the Cohen Plan would eliminate the White House from any role in the post-nomination work of the Committee or of the candidate. The President would simply name his man or woman and then step aside and let the process unfold. Indeed, the Constitution does not explicitly contemplate an active role for the executive branch in the post-nomination process. Instead, it suggests a two-party dance between the Senate, which must "advise and consent," and the nominee, who must be worthy of the endorsement. An "ethical wall" keeping out the White House would have to stand whether the presidency and the Senate were controlled by the same or opposite parties. And it would have to be guarded by the Committee Chairman and the ranking minority member.
I know that a Supreme Court nomination—any Supreme Court nomination—is more a political process than a legal one. That's why it takes place on Capitol Hill and not at the Supreme Court. But just because the process is political doesn't mean it has to be as empty and as shallow as it is. Just a few decades ago, Supreme Court nominees were confirmed in private, behind the closed doors of the Senate, without even a nod to public awareness or information. We have come a long way since then. But the Alito hearing proves we still have a long way to go.
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