Stuntz on Judicial Nomination Hearings

Bill Stuntz's general-audience pieces are always worth reading.  Today's example is this one from the New Republic online.  Stuntz argues that the current practice of having nominees appear in person before the Judiciary Committee is "one political ritual we'd be better off without."  (I have written on this issue before, ie. this post.)  Stuntz's starting point is the assertion that "[l]ive hearings are always about temperament--which is precisely the problem. They ought to be about judicial philosophy, about the candidate's substantive record. That will never happen as long as candidates sit for days and answer senators' questions."  A couple of choice points following from this proposition:

"Thoughtfulness, good judgment, and good writing skills are vastly more important [than the skills, such as eloquence and quickness on one's feet, that are central to the live hearing process]. Those character traits often show up in the written record. They rarely surface in live testimony.  As for personal scandals, I wouldn't mind a Court filled with men and women who have done some things they find shameful now. That's a sign of an interesting life, and of moral growth. Better that than a Court filled with Stepford justices whose every public move since law school has been carefully measured with an eye toward future Washington Post headlines."

Of course, this is a political non-starter right now.  Moreover, I am not as eager as Stuntz to deny that judicial temperament is not an important criterion for a nominee -- although I think this trait, too, is only imperfectly tested by the live hearing process.  As I have said here before, though, I do think we might be well-served by chipping away at the assumption that a nominee must appear before the Judiciary Committee, and that he must answer questions. 

More broadly, I believe the problem with the current set-up is that many Senators are unwilling to simply and publicly vote no for the sole reason that they disagree with a nominee's likely judicial philosophy, at least as long as the nominee is otherwise qualified.  I think they are entitled to do so, but worry that such an unadorned exercise of senatorial power is politically unsaleable.  So they turn to two primary strategies, and here is where I overlap with Stuntz: either they must show that the nominee is an extremist (even if he isn't, really), or they must show that the nominee is personally unsuitable (ie., the Thomas hearings), which leads to an endless search through records, an exaggeration of past conduct, an unwillingness to forgive, etc.  (An emerging category, which is related to both of these two, is the "too little information" or "procedural irregularity" complaint, which was used in the Estrada nomination and is at play with Roberts as well.)  All of these approaches tend to push matters away from a more sober and realistic discussion of the nominee.*  When one adds to this mix both cameras and the apparent need to justify a vote as more than a matter of simple refusal to confirm, they make the live hearing process far more likely to produce heat than light. 

In short, I think that Stuntz raises valid concerns about the hearing process, but that those concerns are exacerbated by live hearings, not caused by them.  The beginnings of a cure lie, as I've said, in shaking the assumption that a live appearance by the nominee is mandatory and is a compelling reason for a no vote.  (A senator could still vote no on this basis; but not because the failure to appear is inherently a disqualifying fact.)  Still better, though, would be for senators to simply vote yes or no for whatever reason, and for the public to accept that the Senate is entitled to do so, without perpetuating the fallacy that a compelling reason is required for such a vote -- a fallacy that distorts the hearing process by turning it into a search for precisely those "compelling" reasons.      

*  Indeed, although Senator Schumer is a vocal proponent of my view that senators are entitled to vote no for purely ideological reasons, it is difficult to see his approach to the Roberts nomination as having embodied that view; rather, it seems to me he has gone with both approach 1 and approach 3 in an effort to buttress his desire to vote no.