Advice and Consent

October 08, 1991

Senate Judiciary Committee Chairman Joe Biden said at the conclusion of eight days of hearings on the Supreme Court nomination of Judge Clarence Thomas that he thought the committee's next hearings should be about how to reform the confirmation process. He plans to call scholars, lawyers and political scientists to testify.

That the committee did a bum job is underlined by the eleventh-hour flap over a charge that Judge Thomas harassed sexually a female aide. The committee staff apparently coerced a statement from the woman involved. The members of the committee knew of it at the time they voted on Judge Thomas and discounted it, but after the charge was leaked to the press over the weekend some committee members said the Senate should delay its vote, which is scheduled for tonight.

To delay, on the grounds that the Senate was denied information the committee had but did not itself feel was worth making public, would make an absolute mockery of confirmation hearings. It would make Senator Biden's call for reform even more urgent. The Senate should vote.

Senators don't need hearings to decide how to improve the process. They should just sit around, face to face, and brainstorm. One idea already floated by several senators is a quick hearing within days of the nomination, so that the White House and the Justice Department could not coach the nominee on how to be non-responsive. The Thomas hearings began 10 weeks after the nomination was announced. Judge Thomas was clearly coached. So were members of the committee. Some did little more than read questions prepared for them by staff. Others did little more than posture, making statements rather than trying to evoke responses. There was no coordination. Judge Thomas was asked the same questions over and over again, as the senators took their turns.

A quickly held hearing would avoid the staged, rehearsed and empty performances on both sides of the committee table. Weeks of preparation turn the hearings into quibbling over minutiae, into a duel between the president's staff and the senators' staffs, with every special interest joining in on one side or the other. This really doesn't get to the question of whether a nominee is qualified.

Presidents could make the procedure work better, too. They could follow the Constitution to the letter. Article II, Section II says the president appoints justices "by and with the advice [italics added] and consent of the Senate." If presidents would ask the Judiciary Committee for advice before the nomination, instead of just seeking consent after, the atmosphere and the process would be greatly improved.

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