September 7, 2005
By Paul Rosenzweig
All of official Washington is on edge. Soon the capital city
will be treated to one of its most cherished rituals -- the
spectacle of a big hearing. The Senate Judiciary Committee has
scheduled four full days to consider the nomination of John Roberts
to the Supreme Court.
At the risk of heresy, I want to ask a simple question: Why? Why
are we having these hearings? After all, there is little doubt that
Roberts will be confirmed. Unless he has a secret history that
will, miraculously, soon be revealed, the final result -- ready
confirmation by a solid majority -- is a foregone conclusion. Even
the votes against Roberts -- such as Sen. Barbara Boxer's promise
to vote "no" unless Roberts expressly agrees to uphold Roe v.
Wade -- are unlikely to change.
It's worth remembering that Senate judicial confirmation hearings
are a relatively new invention. In the first 150 years, no court
nominee ever testified, and the first -- Attorney General Harlan
Fiske Stone -- did so only to respond to allegations of
prosecutorial misconduct in the investigation of a senator. Justice
William O. Douglas didn't testify in 1939, and in 1949, Sherman
Minton refused to appear (even though the Senate asked him to) on
the ground that his record as a former senator and sitting
appellate judge spoke for itself. Yet both Douglas and Minton were
It wasn't until relatively recently -- in 1955 -- that it became
routine practice for nominees to appear before the Senate. And it
wasn't until Justice O'Connor's hearing in 1981 that the
nominations were televised.
So, again, why have hearings? Senate votes aren't affected, and
history demonstrates that the Senate is perfectly capable of
judging a nominee without them -- if it wants to. Yet, in this
case, we will hear not only from the nominee, but also, more
importantly, from all of the interest groups, both pro and con, who
are vitally interested in the nomination.
And that, I think, explains why we will have the hearings. They
aren't for the senators, who likely know how they will vote. The
hearings are for the interest groups and their constituents.
When Sen. Boxer says she will vote "no" unless Roberts promises to
support Roe, it isn't as if she actually anticipates that
he will come to the hearing sporting an "I support Roe"
button on his lapel. Likewise, when conservative senators ask about
Roe, they won't be expecting Judge Roberts to promise to
Rather, their audiences are different ones -- principally,
constituents who have voted for them (and whom they hope will vote
for them again). More significantly, the hearings are for the
interest groups who gather around the Supreme Court as the ultimate
arbiter of American culture today. For Sen. Boxer, it is "NARAL
Pro-Choice America" that matters most.
To see this, look at one of Washington's favorite maneuvers that
occurred in mid-August -- the trial balloon. Anonymous Democratic
senators were quoted as saying that they thought they'd give
Roberts a pass. But the balloon popped. The adverse response from
liberal interest groups was immediate, and the very next day Sen.
Patrick Leahy, D-Vt., raced to characterize Roberts as a "radical"
from the "far right wing" of the Republican party.
And that's sad. It reflects the ultimate triumph of politics over
law and effectively reduces the Supreme Court to an ersatz
legislature -- a pale imitation that short-circuits democratic
Perhaps it would only address a symptom, and not the cause, but
shouldn't the Senate consider returning to its historical
tradition? Hearings should be about the qualifications of the
nominee, not public posturing for special-interest groups. Maybe we
should save the political speeches for the floor of the Senate, and
do away with the theatrical production of modern confirmation
is a senior fellow in the Heritage Foundation Center for Legal and
Judicial Studies and a former Justice Department lawyer.
Distributed nationally on the Knight-Ridder Tribune wire
All of official Washington is on edge. Soon the capital city will be treated to one of its most cherished rituals -- the spectacle of a big hearing.
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