The Right Coast

December 28, 2005
Senate Hearings on Supreme Court Nominees Are a Modern Innovation
by Gail Heriot

I don't know about you, but I'm getting a bit restlesss waiting for the Alito hearing. Perhaps I shouldn't be so eager for an event that is overwhelmingly likely to be less than illuminating. But when you remember that Alito is actually replacing Sandra Day O'Connor, who announced that she was retiring in June, it's really been a long wait ....

Supreme Court nominations didn’t used to take so long. As recently as the 1920s, it was still possible for a member of the Supreme Court to resign on a Monday, the President to nominate his successor on a Tuesday, and the Senate to confirm the nominee later that afternoon. One, two, three. The process couldn’t have been carried out with any more deliberate speed.

Part of the reason for the change is the Senate hearing itself. It was not until 1925 when the Senate Committee on the Judiciary held its first hearing on a Supreme Court nominee. And it was not until the 1950s that hearings became routine–perhaps not coincidentally around the same time many Americans were buying their first television set. When Harry Truman nominated Sherman Minton in 1949, Minton actually refused to appear before the Senate committee. He considered it undignified and unnecessary given his record of judicial service. The Senate confirmed him anyway.

The Senate’s willingness to confirm Minton despite his refusal to appear speaks louder than any words. Senate hearings occasionally help to clarify issues about a nominee’s fitness for judicial office. But those occasions are rare. Most hearings are just glorified photo opportunities. And on the occasions on which they are used as a "gotcha"--an opportunity to catch a well-qualified nominee in some innocent mistake or unfortunate turn of phrase–hearings are worse than a frivolous use of time.

The real work of the Senate--scrutinizing the nominee's legal and judicial career and reading every word he or she has ever published-- is done behind the scenes. (In Alito’s case this work is largely already done and seems to have yielded little fodder for Alito's opponents). By the time the hearing rolls around, it would take a lot to divert members of the Senate away from the opinions they have formed based on the record. And that is the way it should be. A nominee should be judged on a lifetime of achievement rather than his or her performance during a day of grilling under the glare of the television lights. Great judges are not always great television performers.

So why am I restlessly looking forward to the Alito hearing? My alternative is to grade exams ....