The morning after Judge Samuel A. Alito, Jr.’s good wife left the Senate Judiciary Committee hearing room in tears, Katie Couric, on NBC’s Today Show, questioned Senator Joseph P. Biden, Jr. (D-DE). Sensing that the Democrats had likely blown it, Couric asked Biden if the Democrats hadn’t gone too far in questioning the Judge. The longtime Senator (34 years), of course, denied that the Democrats had been rough on the nominee, but then in the course of the discussion which followed Biden, in spite of himself, said perhaps it was just time to have a debate on the Senate Floor over judicial nominees and then vote them up or down.
I have been watching judicial nominations since President Lyndon B. Johnson nominated Judge Abe Fortas to be Chief Justice. Senator Robert P. Griffin, then Republican Whip, organized an effort to block that nomination. Fortas not only did not get to be Chief Justice, he ended up resigning from the Court altogether following disclosure of financial irregularities. The Senate never voted on the nomination of Judge Homer Thornberry, who would have succeeded the resigned Justice Fortas. Republicans were convinced that they would win the 1968 Elections so they simply served notice that there would be no further consideration of Federal judicial nominees until after the 1968 Elections.
Harriet Miers may be the Thornberry of the Bush Administration - by all accounts a decent person but passed by on account of subsequent events.
The first Supreme Court nomination to get the kind of treatment by the liberals which Judge Alito has received was William H. Rehnquist, nominated in 1971 by President Richard M. Nixon. He later was elevated to Chief Justice by President Ronald W. Reagan and served in that capacity until his death last year. He was grilled in committee, although probably not enough to cause Mrs. Rehnquist to cry. There were heated speeches against him on the Senate Floor. He ultimately was confirmed but received the most votes against any Supreme Court nominee in modern times.
Then came Judge Robert H. Bork. On the same day President Reagan nominated him to the High Court (on the unanimous recommendation of the conservative movement, I might add), I telephoned Bork and was surprised to find him available. I was thrilled that he had been selected and was startled when he said, “I have a very bad feeling about all of this, especially because of the hearings.” He knew whereof he spoke.
Time after time I heard these Democratic Senators on the Judiciary Committee growl at Judge Alito, “Why can’t you answer the question!” and, “You owe us the truth. You don’t have to say how you will vote but tell us your approach to this issue...” Judge Alito was more candid than had been Chief Justice John G. Roberts, Jr. Yet, we didn’t learn a great deal from the hearings. Why? Because Judge Bork had been a nominee. Bork told the truth. Robert Bork was forthcoming. These same Senators who demanded answers then turned around and used the candid answers against him.
Thereafter, every future judicial nominee was counseled to be as vague as possible. They all understood. Candor does not pay. So lack of candor is what the Committee got. It began with Clarence Thomas, who called the Committee proceeding a “high-tech lynching.” Judge Ruth Bader Ginsburg, who had been Counsel to the ACLU and had advocated lowering the age of consent to have sex to age 12, said next to nothing. Neither did Stephen G. Breyer.
So what do we get out of these Judiciary Committee hearings? A chance for Senators to blow hard to demonstrate they supposedly know more than the rest of us about some obscure law. And a chance for the nominee to demonstrate that he is six times smarter than the Senators questioning him. We get little else.
Unless Republicans are clever, as they seldom are, they receive almost no media coverage. Democrats are everywhere expressing grave concern about any nominee whom President George W. Bush could nominate. These liberal Senators hate President Bush so much that these hearings are merely a surrogate venue for that hatred to be expressed. There are some reasonable Democrats in the Senate. The Party Leadership has taken pains to assure none serves on the Judiciary Committee.
So what is wrong with Biden’s proposal? I doubt he meant it but let’s take him at his word. In more than half of our nation’s history there was no Committee in the Senate. All legislation was considered from the Floor. It was only in the Post-Civil War Era, when the Federal Government began to involve itself in more and more areas, that the Senate created committees. You will note that there is nothing in the Constitution about committees.
If it is no longer true that nominees to the Supreme Court will be approved on the basis of qualifications and temperament and experience, and if it is all ideological, then let’s have at it. The liberals did not win in 2004. George W. Bush did and he helped to add four Senate seats to the 51 majority in the 108th Congress, by which Republicans controlled Congress.
So why don’t we skip the Committee ordeal? Why not submit to the nominee a reasonable number of questions which should be answered within a specified period of time. Then let the Majority and Minority Leaders agree on a debate schedule. Perhaps a week can be reserved for Senate consideration of a nomination to the Supreme Court. Then, if rules are changed, an up-or-down vote would be required. If rules remain as they now are, then the nomination could be filibustered.
C-SPAN will carry the Senate proceedings. The people at home who care will hear a great philosophical debate between those who believe in original intent (i.e., the Constitution means what it says) and those who believe that the Constitution is a living and continually changing document. One side concerns itself with the law. The other side concerns itself with outcomes. Both sides would be speaking about the nominee, his answers, his writings, his experience and so on - as they now do in Committee. The only thing missing would be the attempted humiliation of the nominee.
It isn’t going to happen because Senators LOVE to appear before those television cameras. And having Judiciary Committee hearings gives them an extra shot at the cameras - in Committee, then on the Senate Floor. But the man who, according to liberals, in the conscience of the United States Senate, Robert C. Byrd, of West Virginia, excoriated liberal Senators for their behavior in the Judiciary Committee. He did so in announcing that he would be among a handful of Senators to vote in favor of the confirmation of Judge Alito.
Maybe his colleagues ought to pay attention to the Senior Senator from West Virginia, now running for his ninth term. Maybe, even at his fading age, he knows something they don’t know. Most Democratic Senators on the Judiciary Committee were a disgrace. If those Senators are the composite face of the Democratic Party come November, Republicans may reverse history and win anyway.