It’s not hard to understand why Brett Kavanaugh would spend three long days submitting himself to the questions, pronouncements and self-aggrandizement of the members of the Senate Judiciary Committee. For his trouble, he can expect a lifetime job on the highest court in the land.
What’s hard to understand is why any of the rest of us would squander part of our allotted lifespans on this exercise.
The opportunity to watch and hear the Supreme Court nominee speak for himself promises to be almost completely irrelevant to the outcome. The Democratic senators already were resolved to vote against him, and the Republicans arrived firm in the opposite intention.
No minds appeared to be open, and none is likely to be changed. Given that the GOP has 51 senators and the Democrats only 49 (including two independents), it’s a safe bet that Kavanaugh will be confirmed.
At least some of the senators thought the hearings were a good use of their time. They had a national TV audience, and they felt obliged to provide a spectacle. Sen. Cory Booker, D-N.J., threatened to violate Senate rules by releasing confidential documents in what he proudly called his “Spartacus moment.” As it turned out, they had already been approved for release. That didn’t stop Sen. John Cornyn, R-Texas, from warning Booker that he could be expelled from the Senate.
If the senators want to debate the merits of a nomination, they should knock themselves out. But there is no obvious value in requiring the nominee to explain himself or herself. For such exchanges to be truly educational, someone has to be prepared to instruct and someone else has to be prepared to learn. That’s not the case in these hearings.
In 1987, Robert Bork used his confirmation hearings to mount a serious defense of his method of constitutional interpretation — furnishing many excuses for the Democratic-controlled Senate to vote him down, as it proceeded to do. The experience was taken to validate an adage of Calvin Coolidge: “I have never been hurt by anything I didn’t say.”
Since then, appointees have made a practice of revealing as little as possible about how they would have decided past cases and how they would rule in future ones. Trying to get Supreme Court nominees to divulge what senators most want to know — such as whether they would uphold or reverse Roe v. Wade — is as pointless as trying to teach a cat to swim.
For most of our history, the process was very different. “It wasn’t until Louis Brandeis’s nomination to the Supreme Court in 1916 that the Senate held a hearing,” wrote law professors Randy Barnett and Josh Blackman two years ago in National Affairs magazine. The first time a nominee testified in person (Harlan Fiske Stone) was 1925.
Decades ago, such testimony may have been worthwhile for lawmakers and voters. If so, that time has passed. Better now for the senators to peruse the nominee’s record, identify his or her virtues and failings, and debate how this information should guide their confirmation votes, yea or nay.
That process might not change many votes, either. But at least it would eliminate a lot of pointless and time-consuming theatrics. Given the choice, most of us would prefer a good circus.