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Confirmation Hearings Are Political Theater and That’s OK

Stage right. (Photographer: Chip Somodevilla/Getty Images)

I’m here to defend the much-derided practice of Senate Judiciary Committee hearings for Supreme Court nominees. At least a little bit.

While we might wish these events delivered an advanced class to the nation in constitutional law, they clearly fall way short of that hope. Nor do they seem to reveal much about a nominee like U.S. Appeals Court Judge Ketanji Brown Jackson other than her ability to patiently endure hours of abuse from one side of the aisle and hours of fawning from the other, without showing what she really thinks of any of it. Oh, and her skill in listening to windy speeches without losing focus when a question pops out. The odd thing about it is that these are skills she may never again need to deploy in her professional career, should she be confirmed.

But I do disagree with my Bloomberg Opinion colleague Matt Yglesias, who tweeted Tuesday afternoon that “Congress would function better if there were no cameras in confirmation hearings and the only point of asking questions was to solicit an answer rather than generate a video clip of yourself.” Even though I agree with him that transparency is overrated in politics. Governing in a democracy, and especially in the Madisonian  U.S. democracy, requires bargaining and deal-making, and that hard to do in public, or even in private conversations subject to disclosure laws.

Congressional hearings are rarely used to generate information for committee members. Sometimes the process of putting together the event can educate members of Congress, but not the sessions themselves. Oversight hearings tend to be most informative as they are being planned, and they are effective because of the threat they pose to agencies that are doing thing Congress (and perhaps the public) doesn’t approve of, not because probing questions will break the witnesses.

In the nomination process, much of the action takes place behind closed doors, including lobbying the White House for and against particular candidates and other kinds of internal deliberations and consultations. (An exception might be a public trial balloon, when presidential staffers float names of potential nominees to shake loose additional information about them, but that’s usually used to supplement other methods). Senators have many better ways than public hearings to learn what they need to know, including private conversations with the nominee.

So why have the hearings? As the political scientist Nadia E. Brown pointed out on Twitter, they are “political theater” — but she added, “I like political theater.”

So do I. This kind of theater can convey some substantive material to the public. Hearings construct a public record to supplement the private deliberations that start as soon as a Supreme Court vacancy is announced. Hearings can also tell us lots of things about what politicians and political parties think is important. They can shine public light on previously obscure topics. Of course, what politicians and parties care about may seem foolish or worse, but that’s not the fault of the hearing process. 

These events are also rituals of democracy, and republics need rituals. We could think about the ways in which this ritual contrasts with, and complements, the State of the Union speech that President Joe Biden gave on March 1. The political scientist Matt Glassman has written that those speeches are important in part because of what they symbolize:

The State of the Union address is the only regular non-electoral event on the American political calendar that brings our democratic government together as a whole. In a system of separate institutions sharing power, in which the ambitions of men are pitted against each other in hopes of producing a common good, the SOTU reminds us that fundamentally we are not a nation of competing political parties, or of divergent ideologies, or of irreconcilable  interests. At our core we are a unified republic, a collection of people who quite naturally disagree about policy but concur that the best way to resolve those disagreements is through a republican government elected by a democratic vote of the citizenry, under a constitutional system that balances the capacity of government with limits that protect the liberty of the people to seek their own happiness.

Supreme Court nomination hearings don’t bring the entire government together, but they do bring a president’s nominee in front of a Senate committee, which is in some ways similar. Instead of a choreographed celebration of unity, it’s a deliberately confrontational procedure, which serves to remind us that disagreements and varied interests are just as healthy and just as necessary in a democracy as the unity some other rituals evoke — that the motto “out of many, one” requires “many” just as much as it requires “one.”

Rituals of democracy can’t save a republic from every threat. But they are an important part of building a healthy polity. They help teach about institutions and democratic values. They celebrate our choice of self-government, thereby helping to strengthen it. Supreme Court nomination hearings don’t go back very far in U.S. history, but they’ve been around long enough that they’ve become a prominent part of the landscape.

This particular ritual is hardly perfect, and is as apt to remind citizens of the limits and flaws of the republic as its strengths. But at it’s nice to have something in which the president, while relevant, is not the center of attention. That alone is a useful reminder about how the U.S. political system is organized.

Beyond that? It’s part of the democracy we have, and every little bit helps.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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