« Bye Bye (and a McSweeney's Piece for the Road) | Main | Levinson on the Vanishing Book Review »

Monday, July 13, 2009

Value in hearings after all?

Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole.

And in truth we have heard some of that (ironically, from a Democrat, I believ Sen. Schumer)--government should win most of the time in criminal cases, government should win most of the time in immigration cases, and most race-discrimination claims should be rejected.

Posted by Howard Wasserman on July 13, 2009 at 11:52 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Value in hearings after all?:


I doubt that. What it means to perform the job "faithfully and within the strictures of the Constitution" is entirely contested, seemingly along political lines. For Republicans, *Kelo*, *Roe*, *Lawrence*, the lower-court decision in *Ricci* (which Sotomayor joined), etc., etc., all reflect biased and unfaithful decisionmaking. So I seriously doubt there will be any great discovery of such unwillingness on her part.

Posted by: Howard Wasserman | Jul 13, 2009 3:07:23 PM

Let me also add the following three reasons for why the hearings are important. First, they engage the American polity and informs them of the role of the judiciary. Unlike lawyers and legal academics, the majority of Americans are unfamiliar with the function of a Supreme Court justice; the confirmation process thus serves an educational purpose. Second, the hearings remind the nominee of her constitutional obligations. This is in line with (but not identical to) Jack Balkin's sentiment. Third, they force the judge to explain certain statements or actions that are at odds with the oath of office she will take. If a judge is unwilling to perform her job faithfully and within the strictures of the Constitution, then the hearings should bring that out.

It seems to me that these are important objectives. Although the hearings are inherently political, the confirmation process is vital and should not be so quickly dismissed.

Posted by: HJT | Jul 13, 2009 2:42:54 PM

The comments to this entry are closed.