John Roberts Nomination

So many people talking--so little time! Where to start?

First, Hugh Hewitt has a link (here) to "The Jorgensen article," which was written by Jay T. Jorgensen. The title is, "PRECEDENT FROM THE CONFIRMATION HEARINGS OF RUTH BADER GINSBURG FOR THE CONDUCT OF JUDICIAL NOMINEES."

The salient point that I take from this article is Jorgensen's description of Sen. Biden's comments to the Senate on how, as the Judiciary Chairman, he intended to conduct the Committee hearing on 1993-nominee, Ruth Bader Ginsburg:

Senator Joseph Biden was Chairman of the Senate Judiciary Committee when Justice Ginsburg was nominated to the Supreme Court in 1993. On July 15, 1993, shortly after Justice Ginsburg’s nomination became known to the Senate, Senator Biden identified the standards he expected senators and judicial nominees to follow in the confirmation process. Importantly, Senator Biden noted that the Senate’s hearings, including the question-and-answer period between senators and the nominee, should not be a "dramatic spectacle" or a "trial." Senator Biden also emphasized that the nominee’s appearance before the Senate should not be invested with a make-or-break importance, as the Senate’s hearings are only one part of the confirmation process (particularly in instances when nominees have a long-standing public record that illustrates their qualifications and views).

In contrast to the recent idea that a nominee’s appearance and answers before the Senate are an essential part of the confirmation process, Senator Biden noted that the practice of inviting Supreme Court nominees to appear before the Senate is relatively novel. Senator Biden said:

[I]t is useful to recall that testimony before the Judicial Committee by Supreme Court nominees is a new phenomenon.

Appearance before the committee became a standard part of the confirmation process only in the year 1955, with John Marshall Harlan. No Supreme Court nominee testified personally until 1925, when Attorney General Harlan Fisk Stone responded to allegations of prosecutorial misconduct in the investigation of a Senator.

The next five nominees did not testify at all, and it was not until 1938 that Stanley Reed appeared. The next year, Felix Frankfurter testified, but William O. Douglas waited outside the committee hearing room without ever being called in as a witness. And in 1949, Sherman Minton was called to testify at the hearing on his nomination to the Court. He refused to appear on the grounds that his record as a Senator and as appellate judge spoke for itself. He refused to come. He was called before the committee in 1949. He refused to come and he was confirmed by the Senate.2

Senator Biden’s comments are important because they demonstrate that the current gladiatorial process of attacking a nominee before the television cameras is not a deeply rooted part of American history and tradition. Additionally, whatever reticence current nominees may show in participating in the Senate’s hearings, that reluctance will likely not be as significant as Justice Minton’s outright refusal to appear when called.

Senator Biden also commented on the extent to which Supreme Court nominees should answer questions about their potential future rulings. Senator Biden said "the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog."3

Senator Biden’s comments should be helpful to current senators and nominees as they reflect the considered judgment of a Democratic chairman of the Senate Judiciary Committee and explain the standards he used for conducting hearings on a Democratic nomination.

Let the Jorgensen article become the Democrat Double-Standard Alert (DDSA) as we move into the hearings phase of the confirmation process. Current Judiciary Committee Chairman Arlen Specter would be well-advised to repeat Senator Biden's instructions as he begins the hearings. If you're so inclined, here is the contact page for Senator Specter.