How about this strategy for getting better Supreme Court justices?
The Senate confirmation hearings for Ketanji Brown Jackson demonstrated that the Supreme Court justice nomination process is deeply flawed. The only possible benefit is that the hearing was public, and this perhaps allowed a few meaningful facts to leak out. Other than that, it was an embarrassing spectacle.
They always are. The hearings have become little more than bare-knuckle political brawls. But winning should not be the goal. Identifying qualified candidates is the goal.
The truth is that the Constitution does not require a public hearing. In fact, prior to 1916, there were no public hearings for Supreme Court nominees. The current model serves only to politicize the confirmation process and divide the nation. But there are several viable alternatives to the current model that might bring some sanity and value to the process:
Alternative 1. Hold closed-door hearings. Hold the committee vote to forward the nomination to the full Senate, then the full Senate votes yea or nay. No debate. No public spectacle.
Alternative 2. Have the nominee submit responses to a written questionnaire with questions provided by both parties, which will be published. Then the full Senate will debate the nominee and vote within three days. Limited public spectacle.
Alternative 3. The nomination hearing would be like an Olympic skating competition. One day for freestyle routines and another day for compulsory routines. Congress would pass a law requiring a set list of prescribed questions to be asked of all Supreme Court nominees in public hearings. If a question is not answered clearly, a second similar prescribed question is asked. If no clear response is provided, a notation will be made that the "nominee evaded a clear and concise response." Then the nominee would be asked a limited number of party-specific questions. Managed public spectacle.
The schedule of events would look something like this:
Day 1: Opening statements, nominee resume. One hour time limit.
Day 2: (10) Freestyle questions: (5) Democrat (5) Republican. Two hours' time limit, one hour per party.
Day 3: (10) Prescribed questions. Two hour time limit.
Day 4: Publication of prescribed questions and answers with a statistical analysis of rulings history.
The pool of prescribed questions might include the following:
1. Do you believe that the federal government has powers not stated in the Constitution?
2. Does the Constitution imply any grants of power to the federal government?
3. Do Supreme Court decisions carry the same weight as the Constitution?
4. When is a prior Supreme Court decision re-viewable by a later court?
5. Does stare decisis protect the stability of our legal system or does it protect the institution of the Supreme Court itself?
6. Whose understanding of the Constitution is more important: yours or the Founders?
7. What branch of government has the power to make laws?
8. Does Congress have the right to delegate its lawmaking power?
9. How would you define a "public use" in reference to the Takings clause of the Constitution?
10. Is a "public use" more important than a "private use"?
11. Does the Commerce clause give the Congress jurisdiction over all issues touching interstate commerce?
12. What is the purpose of the federal style of government designed by the Founders?
13. Is the Constitution the law of the land?
14. What does your oath mean when it says you swear to "defend, preserve, and protect the Constitution from all enemies foreign and domestic"?
15. Who are domestic enemies of the Constitution?
16. Is the Supreme Court the ultimate interpreter of the Constitution?
In addition to publishing the prescribed questions and answers, a prescribed statistical analysis of a nominee's career of rulings will also be published. Statistical analysis categories might include the percent of rulings in which the nominee:
• expanded government power
• protected the Bill of Rights
• issued national injunctions
• favored administrative agencies
• favored government seizure of private property
• suffered a reversal on appeal
All this to determine if a nominee will follow the Constitution — areal headache, but gravely important to our Republic.
We don't need enlightened interpreters of the Constitution; we need traffic cops. Learn the law, explain the law, apply the law. That is their job. If a law is badly written, that is Congress's problem — not the Court's problem. The Supreme Court has a very narrowly defined role in our society. Identifying candidates that are committed to that role is critical to preserving our cherished Republic.
Image via Max Pixel.