High court, low politics

Whoever is chosen by President Obama to succeed Supreme Court Justice David H. Souter -- and regardless of whether empathy, academic credentials or political experience are considered the most important qualifications for the job -- he or she must endure confirmation hearings before the Senate Judiciary Committee.

We use the term “endure” deliberately. If proceedings for Obama’s nominee resemble recent Supreme Court confirmations, the nominee and the nation will be subjected to a spectacle in which self-obsessed senators, cribbing from playbooks prepared by others, will harp on trivialities, suck up time with soliloquies and throw either softballs or screwballs at the nominee.

Robert H. Bork’s grueling five-day interrogation in 1987 still rankles conservative activists who believe the legal scholar was dragged through the mud by Democrats. During confirmation hearings for Judge Samuel A. Alito Jr. in 2006, then-Sen. Joe Biden tried to make an issue of the nominee’s long-ago connection with a conservative alumni group at Princeton University, Alito’s alma mater. Then Biden atoned for his comments by donning a Princeton baseball cap. The surreal low point of inane questioning may have come in 2005, when, after a rant about abortion, Sen. Tom Coburn (R-Okla.) asked Chief Justice-designate John G. Roberts Jr. if he agreed that “the opposite of being dead is being alive.” (“Yes,” Roberts answered, adding: “I don’t mean to be overly cautious in answering.”)

It’s no wonder that some would turn back the clock to before 1925, when Harlan Fiske Stone became the first high court nominee to testify before the committee in person. But there’s a way -- four ways, in fact -- to make confirmation hearings relevant again in a manner that might also encourage more candor from the nominees.

Show considerable deference to the president. As Sen. Lindsey Graham (R-S.C.) reminded Democrats during the Alito hearings, “elections matter.” Both the court and political discourse would benefit from a reaffirmation of this once-uncontroversial principle and a rejection of the notion that the Senate’s advise and consent role is identical to the president’s appointment power. This page probably will be happier with Obama’s choices for the court than we were with President George W. Bush’s, but that’s not the only reason we believe the Senate should be respectful of Obama’s choice.

Importantly, deference is not the same as acquiescence; the Senate should allow the president to name a justice who reflects his politics and judicial philosophy, even as it insists on nominees of exemplary intelligence and credentials whose thinking is within the broad contours of accepted jurisprudence. In our own attempt to apply that balance, this page supported the nomination of Roberts despite misgivings about his politics, but we opposed that of Alito, a more extremist and less-qualified nominee.

Rein in the interest groups. Beginning with the nomination of Bork, interest groups on the right and left have played a disproportionate and damaging role in Supreme Court confirmations. The stock in trade of these groups is hyperbole, and senators are willing to turn the Judiciary Committee hearing room into an echo chamber for their sometimes hysterical talking points. After Roberts was nominated, he was described by liberal groups as a “far-right” figure who would “dramatically shift [the balance on the court] to the right for decades to come.” His work has not always been to our liking, but those predictions have so far proved exaggerated. Expect similarly apocalyptic denunciations of Obama’s nominee from right-wing groups.

No more nitpicking. Lawyers call it “flyspecking” -- sifting through a huge record to identify a single flaw and exaggerating its importance. One bad or insensitive decision is often used to imply that a nominee lacks judgment. One of the candidates reportedly being considered by Obama, U.S. Court of Appeals Judge Sonia Sotomayor, sided with the city of New Haven, Conn., in a case in which white firefighters missed out on promotions because the city belatedly discarded a test on which black firefighters scored poorly. That case is now under appeal before the Supreme Court, and if it overturns Sotomayor’s decision, expect that fact to be cited by opponents of her appointment or confirmation to the court. That would be absurd. No candidate should be judged by a single act.

More candor from nominees. One of the reasons opponents of Supreme Court nominees fixate on trivial issues is that they suspect, but can’t prove, that the nominee harbors uncongenial legal views. Given the continued controversy over the court’s abortion decisions, no candidate is going to give a direct answer about his or her position on Roe vs. Wade, and we’d expect nominees to be similarly reticent when the questioning turns to same-sex marriage. But there’s a difference between declining to prejudge a case and dodging a direct question, as Clarence Thomas infamously did in his hearings when he professed to have no opinions about abortion.

As Sen. Arlen Specter demonstrated in his adroit questioning of Roberts and Alito, it’s possible to press nominees to fill in enough blanks about their judicial philosophy to allow senators to judge whether they’re on the fringe. Civility will help make this process more productive: Prospective justices may be more responsive to senators’ questions when they know that one unsatisfactory answer won’t produce a partisan piling-on.

The Supreme Court plays a vital role in our democracy, and the Senate has an important role in the selection of justices. Both institutions deserve better than the partisan and petty process of recent decades. Obama’s nomination of a new justice offers the Judiciary Committee a chance to start anew.