Confirmation hearings are just a waste of time

July 27, 2005|By Steve Chapman

CHICAGO - A few weeks from now, the Senate Judiciary Committee will open its hearings on the nomination of John G. Roberts Jr. to the U.S. Supreme Court.

Here's what will happen: Judge Roberts will present himself as a humble and open-minded soul, Republicans will extol his virtues as a person and a lawyer, Democrats will demand to know his views on one issue after another, and he will politely avoid telling them. At the end, senators will confirm him.

Instead of going through this process, how about this option: Let's not and say we did.

It's a universal article of faith in Washington that confirmation hearings are a crucial opportunity for senators to inform themselves about the nominee. Through fierce interrogation, they believe, they can make him disgorge his vital secrets. Democratic Sen. Patrick J. Leahy of Vermont insisted that senators "need to know what kind of Supreme Court justice John Roberts would be." Another Democrat, Sen. Richard J. Durbin of Illinois, said he expects the nominee to "tell us what is in his heart."

But trying to plumb a nominee's heart in a Senate hearing is like trying to diagnose an engine problem with the hood closed: What's visible is not important, and what's important is not visible.

Even nominees who get close inspection often confound predictions. Clarence Thomas, who was expected to be a cipher, has become a bold maverick voice. Antonin Scalia, whose personal charm suited him to a coalition-building role, entertains himself tossing grenades. When Franklin D. Roosevelt chose William O. Douglas, Senate critics vilified him as a reactionary tool of Wall Street - only to see him become a liberal hero for the ages.

The confirmation hearings are a tedious ritual that ultimately provides no useful guidance.

There are several reasons for this. One is that nominees are extremely careful not to reveal any more about their legal thinking than they absolutely have to. Does anyone remember what Stephen G. Breyer said during his confirmation hearings?

Some Democrats will ask about Judge Roberts' view of past decisions. Others will try to get him to unpack his entire judicial philosophy for merciless inspection.

In fact, anyone smart enough to get picked for the court is smart enough to find a dozen different ways to say, "None of your dang business." The model here is Ruth Bader Ginsburg, who in 1993 flummoxed Republicans by politely deflecting repeated requests for guidance on her views about a range of subjects.

Asked about the constitutionality of capital punishment, she gave a response that Judge Roberts is no doubt memorizing right now: "I have only one passion, and it is to be a good judge and to judge fairly and not tell in advance, not to give any hint, about how I am going to decide a question that I have never spoken about."

Another reason we can't find out what kind of justice a nominee will be is that he can't know himself. Some appointees feel liberated to follow their instincts wherever they lead. Others stagger under the burden of history. You might as well try to predict what sort of person you'd become if you won the lottery.

There is another wild card noted by University of Chicago law professor Dennis Hutchinson: "The issues change." As he points out, William J. Brennan probably hadn't given much thought to free speech issues when President Dwight Eisenhower put him on the court. But when the civil rights movement and anti-war protests arose in the 1960s, the First Amendment suddenly became the center of attention, whereupon Justice Brennan became a champion of free expression.

At some point, Judge Roberts will have to address unexpected issues he hasn't thought about much. When he does, his conclusions may surprise him and everyone else. Or they may not.

So senators should skip the interrogation and focus on things the nominee said, did and wrote before he needed a reason to be careful. But in the end, they should recognize that every nominee is a mystery. We are going to find out what kind of justice John Roberts will be. Just as soon as he gets on the court.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Mondays and Wednesdays in The Sun.

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