Clam Juice?

A very standard Chemerinsky op-ed today in the LA Times (both standard on the topic and standard Chemerinsky), arguing that "we must be sure to question the [Supreme Court] nominees closely."  Kind of funny to see it on the same page as Orin Kerr's fill-in-the-blanks op-ed, although the two hit different angles of the nomination process.

Chemerinsky is surely right that the Senate Judiciary Committee may question a nominee as closely as they like, on any subject.  (Even religion?  You bet.  The Religious Test Clause arguments that have emerged in the past couple of years are very weak, I think.)  And they may take a nominee's refusal to answer as grounds to vote nay.  Also, a nominee's answers themselves.  Or his/her background, beliefs, clothes, funny looks, ugly kids, or anything else.  Even their race or religion, I should think.  Some or all of these votes might properly be thought wise or unwise, but they are available.  The question is whether, regardless of what the Senate may do, there is much point in grilling nominees.  Politically there is, and it is not inappropriate to view politics as an important part of the business of granting an individual lifetime tenure in the federal judiciary.  As a means of learning about the nominee, most of the time I doubt it will be especially useful.

Personally, I wish more nominees would exercise their equally valid prerogative to decline to answer questions, in part or in substantial part.  The practice of appearing at all did not begin until 1925, when Harlan Fiske Stone appeared to speak on limited matters not directly pertaining to the Court.  Only since 1955 has a nominee's appearance been anything like standard practice.  I think a nominee would be well within his or her rights to say, "I have a lengthy record which you may examine at your leisure.  I'll be happy to clarify that record by answering written questions, or to respond on points of personal privilege.  Other than that, you're on your own."  Of course the Senators may reject a nominee on that basis, but as I've said, they can reject a nominee on any basis anyway.  Not to say that all nominees ought to refuse to appear; but neither must they do so, in my view, and something might be gained if a few declined the invitation.  Restoring real dignity to the process takes work, and a willingness to bear some risk, and I rather hope a nominee someday takes on that task.