Audio: Fred Thompson rips confirmation hearings

posted at 4:00 pm on July 14, 2009 by Ed Morrissey
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I mostly agree with former Senator Fred Thompson in this blast from his radio show yesterday.  Thompson should know just how useless the Senate confirmation process is, having seen them almost firsthand in the Senate.  These hearings produce nothing but sound bites and gotcha moments that have little relation to how a jurist will do their jobs, especially since Robert Bork’s experience taught nominees to speak in platitudes:

This is understandable, I suppose, but from my experience, what a nominee says during his or her hearing, while certainly not irrelevant, is one of the least important considerations upon which they should base their vote. Nominee’s judicial and professional record, along with their public statements and reputation for integrity, are much more reliable indicators as to the kind of judge they will be. Our Founding Father recognized this early on, and it is the main reason confirmation hearings were not held on a regular basis until the 1950s.

There are two things that work against any substantive new information being revealed in a confirmation hearing.

First a nominee can and should refuse to go very far in giving their opinion regarding any legal issue that might come before the Supreme Court in the future. That, of course, covers most any legal issue

Second, in 1990 [actually, 1987 -- Ed] the distinguished jurist, Robert Bork, refused to subject himself to the usual dog and pony Q and A, “how to handle the senators” sessions now given to nominees in preparation for their hearings, the so-called “murder board.” During the hearings he engaged in an open and candid dialogue with regard to his judicial philosophy. We know how that turned out. The odds are great that never again will a nominee make the mistake of committing candor.

For some time now everyone has understood the name of the game: Take as much off the table as possible as inappropriate for discussion. Then, dance around the rest. When you get a question that you’re expected to answer, try to sound as knowledgeable as possible, but play for time and never say anything committee members would find objectionable.

Nothing proved Thompson’s point so much as yesterday’s first hours of the confirmation hearing.  For several hours, all we saw was one Senator after another giving lengthy opening statements, while Judge Sotomayor sat at a table and tried to look as impassive as humanly possible.  What value did that provide, other than a perverse entertainment quotient and some sound bites for the news?

That being said, these hearings do give both political parties an opportunity to stage a national debate on judicial philosophy that could have some value.  However, they hardly need the nominees to attend to do that much, as we saw yesterday, and their attendance holds so little consequence these days that we’d perhaps all do better to let the Senators argue amongst themselves anyway.

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