Thursday, September 10, 2009

The confirmation process--Saying as little as possible.

I am always frustrated by the Senate confirmation process for prospective Supreme Court justices. They seem to be unable to answer the questions we really would like answers to.

Justice Sotomayor stated her judicial philosophy as "Simple: fidelity to the law". This has been the norm ever since the 1987 hearing of Robert Bork, in which a detailed discussion of his judicial philosophy was followed by his rejection. However, this response ignores the fact that the Supreme Court to a large extent makes the law.

In a thoughtful comment in "The New Yorker" of 7/27/09, Jeffrey Toobin pinpoints what is wrong with this approach. In response to Sotomayor's statement that she will adhere to precedent and keep an "open mind", Toobin writes:

"When it comes to interpreting the Constitution, one can scarcely imagine a worse qualification than an open mind. The issues are difficult and profound and require a lifetime of study to master, and one would hope that Justices arrive with heads full of firm ideas about the document they are charged with understanding."

If this be the case, it follows that Senators on the Judiciary Committee should be able to ask questions of nominees about their philosophy or view of the Constitution, and get reasoned answers to those questions. How much more informative and useful the confirmation process would be if this were the case!

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