Confirmation hearings worth hearing

Andrew Cohen is CBS News' chief legal analyst and legal editor.

Confirmation hearings for Supreme Court justices jumped the shark a generation ago. Everyone knows it. But no one does anything about it.

The senators make their windy speeches, vote the way they already have determined they will vote and ask questions they know the nominee cannot and will not answer. The hearings have become torpid exercises in political preening, virtually devoid of any substance.

Here are five ways that the White House, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Jeff Sessions (R-Ala.) can try to impose a new order to the proceedings without taking away the Senate’s important “advise and consent” role.

* Invite, cajole and beg former Justice Sandra Day O’Connor to appear before the committee as a witness to discuss and debunk the myth of “judicial activism.” Let the nation hear from O’Connor just how silly and misunderstood (and overused) that phrase has become. Since retiring from the bench in 2006, O’Connor has been a forceful critic against the label. Let her make her case before a worldwide audience, and then let committee conservatives try to tag her as a hack and a liberal.


* Invite a panel of distinguished judges, “liberal” and “conservative,” to discuss the extent to which federal appeals court judges are required consistently to “make policy” when they interpret ambiguous statutory language given to them by lawmakers who practice the art of compromise at the expense of clarity. One federal trial judge told me: “Every time I see the term ‘reasonable’ in an appellate opinion, I receive the message: ‘Here, you fix it.’ ” Let those sorts of witnesses share the truth with the American people.

* Demand of Sonia Sotomayor that she eschew the “Ginsburg rule” -- refusing to answer questions on cases or controversies she might have to resolve as a justice. She should answer such questions and perhaps even offer her personal views about certain legal standards and doctrines. She can do this without guaranteeing that she’ll vote a certain way in a certain case. And the approach would be far more candid than the one employed by John G. Roberts Jr., who invoked “Ginsburg” and has since voted universally in favor of business over consumers, employers over employees, executive branch power and law enforcement goals.

* Require all committee members to be physically in the room during the hearing unless there is a pending vote -- and make sure there are no pending votes. It is the height of arrogance and cynicism when the senators make their speeches to the nominees and then bail out of the room, leaving the rostrum more than half-empty. During the last round of Supreme Court confirmation hearings, Sen. Tom Coburn (R-Okla.) was seen doing a crossword puzzle.

* Dramatically limit the time each senator receives for on-camera speechmaking while the nominee is in the chair. We all know what each senator thinks -- their tribunes issue copies of the speeches and post them online. Yes, the worst place to be in the world is between a senator and a camera. But at some point, the posturing ought to end. The senators on the committee should be required to ask questions the same way lawyers do in court. Save the speeches for the end of the process.


In a perfect world, confirmation hearings would be an invaluable exercise in constitutional democracy and a wonderful lesson for students of law, politics and governance. Instead, they have become unworthy of the nobility of their place in our system of separation of powers. Someone needs to fix that. And it might as well be these guys, at this time, with this nominee, in these circumstances.