North America Let's Fix the Senate's 'Broken' Confirmation Process

Let’s Fix the Senate’s ‘Broken’ Confirmation Process


A reasonable compromise would be for the Senate to continue to hold hearings where nominees appear and answer questions, but to hold them in private.

New York Times reporter Carl Hulse recently noted that “the Republican manhandling of Judge Ketanji Brown Jackson . . . was convincing evidence that the Senate’s Supreme Court confirmation process is irredeemably broken.”

The process is clearly broken, but not irredeemably. There is a simple fix: conduct all future U.S. Supreme Court confirmation hearings behind closed doors — no reporters, no TV cameras, no opportunity for ambitious senators seeking higher office to get national attention and send dog whistles to their base.

Supreme Court hearings are just an extreme example of the degeneration of political discourse brought on by 24 hour cable news and the well-intended but disastrous C-SPAN channels covering Congress. Thanks to these broadcasts, politicians pretending to address each other are largely, instead, addressing voters.

These leaders are no longer listening to each other, since they aren’t worth listening to and they all know it.

They have made political campaigning permanent rather than episodic. They no longer switch from campaign oratory to the serious discussions and negotiations required by responsible governing.

“Sunshine” is greatly overrated as a guarantor of good government. As analysts have long understood, serious policy negotiations need to be conducted in secret so that participants do not lock themselves into untenable positions that they cannot abandon without losing political face.

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The most important political meeting in U.S. history, the Constitutional Convention of 1787, was conducted in secrecy, with its meetings closed to the public and participants sworn to keep quiet.

Unwise legislation like “open meetings” acts are making it hard for state and local governments to act effectively. But it is difficult to oppose such acts, since the question will always be “what nefarious actions are they trying to hide?”

Woodrow Wilson, with his slogan about “open covenants, openly arrived at” did not help matters, since in diplomacy the best we can hope for is open covenants, secretly arrived at.

Most Americans may be unaware that the Senate didn’t hold hearings about a Supreme Court nominee until 1916.

In 1916 Woodrow Wilson nominated Louis Brandeis, who became the first Jew to sit on the Court, and the Senate held hearings.

However, Brandeis himself never attended, and the first time a nominee actually attended a hearing was in 1939.

That nominee was Felix Frankfurter, and he too was Jewish.

He attended, but refused to answer any questions and preferred to stand on his record.

Like Brandeis, he was confirmed by the Senate.

By 1959 nominees were answering questions, or pretending to, but half a century later the farce goes on, propelled by the opportunity the hearings provide to ambitious politicians anxious to get some public attention and, in many cases, hoping to become president.

Since we did all right for 127 years without hearings, one escape from the current mess would be to stop holding hearings. Senators could resume their pre-1917 practice of voting for or against confirmation on the basis of the nominees’ credentials and public record.

Or nominees could return to Felix Frankfurter’s strategy of simply refusing to add or subtract anything from their public record.

The latter step would require more courage than ambitious lawyers wishing to be on the Supreme Court might be willing to demonstrate. But totally ending hearings might be such a big step that senators would be unwilling to take it.

A reasonable compromise would be for the Senate to continue to hold hearings where nominees appear and answer questions, but to hold them in private. This would remove the perverse incentives committee members now have to make long speeches and to ask questions the answers to which they are uninterested in hearing.

Senators could get down to business if they have questions they genuinely want answered, and if they have no such questions they would have no motive to waste everybody’s time by asking any.

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