By Bonnie Erbe, Thomas Jefferson Street blog
There's been a lot of Web and TV chatter about the continuing importance of Senate Judiciary Committee confirmation hearings for Supreme Court nominees—given the relative non-newsworthy hearings for Judge Sonia Sotomayor and her two predecessors, now-Chief Justice John Roberts and Justice Samuel Alito. It's a legitimate question, given the fact candidates are so thoroughly prepared by surrogate questioners and communications persons not to make news.
Are the days of rough-and-tumble hearings over? Not since Justice Clarence Thomas's nomination process has there been a truly nasty Supreme Court nomination process, Mrs. Alito's tears notwithstanding.
Conservatives remember Sen. Ted Kennedy's ferocious attack on "Robert Bork's America," the pubic-hair-on-the-Coke-can humiliations visited upon Clarence Thomas and the way that Samuel Alito's wife cried after Sen. Lindsey Graham recounted the Democrats' charges against her husband.
So does this mean Judiciary Committee hearings have gone the way of the party conventions and become totally pre-staged events thoroughly vetted by PR professionals so that only a concocted partisan message gets through?
It's interesting to note that there was a time, not too long ago, when the Senate Judiciary Committee didn't bother with confirmation hearings. But confirmations without hearings took place in an era when the public expected a heckuva lot less "sunlight" to be shone on government operations:
In 1916, President Woodrow Wilson's nomination of Louis Brandeis, the first Jewish nominee to the Supreme Court, embroiled the Judiciary Committee in a four-month debate. At the time of his nomination, it was not the practice of the Senate to hear testimony from Supreme Court nominees. Instead, the Committee conducted its own investigations, often in executive session and without record of their deliberations.
I cannot see a return to executive session hearings with no public testimony, although it's interesting to note that took place as recently as 93 years ago. Judiciary Committee hearings didn't start until 1925, when Harlan Stone became the first nominee to testify before the committee.
So despite the lack of drama at recent confirmation hearings, they still serve the purpose of allowing last-minute evidence to be entered into the record. Consider Anita Hill's last-minute decision to go public during the Clarence Thomas hearings. That alone makes it a worthwhile venture to continue the process (which some would call a charade) for now.