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Borking Predates Bork
"Many of them just wanted to be one on one. Fine, I understand that," Roberts told me. "But now what is it you want -- now that you've got me alone? . . . I'm still not going to tell you how I'm going to vote."
Roberts did value some aspects of his hearings, he said, because they allowed him to distill his career and judicial philosophy. "I was . . . grateful to be here at that moment, saying: 'All right, I'm under oath, they can ask me anything and I get a chance to tell them what I really think about what judges do and about who I am.' And, you know, let's do it. That part of it was . . . exhilarating."
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But the chief justice also worries about how these hearings might affect judicial independence, and he notes their capacity to distort a person's beliefs and record. "It's like running a marathon," he said. "It is an arduous process. And the people who were helping me made it clear; they said, 'Look, you're going to be sitting there for 12 hours. If you make a 10-second mistake, that's all anyone's going to know about.' "
Live nominee testimony has become a meaningless Kabuki dance. A Democratic senator asks a conservative nominee about controversial topics. The nominee makes reassuring noises and commits to nothing. The senator appears exasperated. The nominee insists he will follow the law. The senator retorts that different judges have different views of the law. The nominee says something about bringing no agenda to the job. The clock runs out, allowing a Republican senator to profess indignation at the prior questioning and to lob softballs at the nominee. Then the cycle begins anew with another Democratic senator. With a liberal nominee, roles are reversed -- but the dance is the same.
It is time to end this failed experiment. Nominees need not bare their souls as a condition of judicial confirmation. Of course, ending nominee testimony would not cure all the ills of the modern confirmation process. It would not eliminate mischaracterizations of a nominee's record or the undue weight of interest groups. It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes. It would, in other words, remove what Sen. Joseph R. Biden Jr. (D-Del.) incorrectly called during the Alito hearings that "one democratic moment . . . before a lifetime of judicial independence when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids."
The democratic moment is not the interrogation of the nominee. It is the point at which the people's representatives debate the nominee's record and cast their votes. Ironically, the hearings only obscure that moment. Many viewers probably remember Alito and Roberts demurring on how they would vote on abortion. But how many remember what a single senator said during the floor debate over either of them?
Benjamin Wittes, a Washington Post editorial writer, is author of the forthcoming "Confirmation Wars: Preserving Independent Courts in Angry Times" (Rowman and Littlefield).
