Tuesday, May 18, 2010

Kagan is Here - Unleash the Lions!

Amongst people I talk to it is often assumed that once the Roman emperors embraced Christianity the cruelty of the gladiatorial games were brought to an end. Sadly the Christian emperors marked a period of deterioration of the Empire and in order to distract their people from this crumbling edifice they were forced to provide more and bloodier games than those that went before. I can only assume that Senate confirmation hearings serve much the same function since they appear to have little to do with actually determining suitability for the post.

An outside observer would assume that the purpose of the hearings was to question views on a number of areas of judicial debate. However in one of those uniquely American conventions, the candidate is permitted to answer any such question with a short statement saying that since such an case might come up before the Supreme Court they do not wish to offer a judgement without first hearing the facts of the issue. This is a reasonable response but renders almost entirely pointless the hearing process.

Also since Supreme Court appointments are for life, there is no accountability once in post and so the hearing appears to be a simple hurdle with the candidate saying simply whatever they believes will get them to office, regardless of whether or not they actually believe it. This is the ultimate in what George Orwell in 1984 called Doublethink.

to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which canceled out, knowing them to be contradictory and believing in both of them

The frustration of Senators with this lack of accountability was clear during the Sottomayer confirmation where several of them drew attention to discrepancies between the testimony offered by Justice Alito and Roberts and how they had subsequently behaved when they reached the Court.

On first hearing about Sotomayer I felt she was an inspiring choice, however my respect for her considerably diminished during the hearings, as at every single opportunity she contradicted her earlier clearly stated opinions. Though she was a clearly intellectual person with excellent communication skills the audience were expected to believe that when she wrote she disagreed with X and Y what she actually meant was she agreed with them. Equally when she said she thought foreign law had a part to play in the intellectual stimulation of judges she meant that it had no part to play.

Had just once she stood up and supported and defended an earlier statement I might have thought her worthy but she did not. Our opinions change and evolve over time, what we believe in our twenties is not necessarily the same as we do by the time we reach forty. A view could have been valid at the time it was stated but revised by subsequent experience. This would at least have had a ring of honesty but that she was so poor about expressing herself did not. I would have liked her to have gone further and actually challenged the Senators about the assumptions they were making. Whilst there seems to be a fear of contamination by anything foreign in the US, the framers of the Constitution had no such trepidation when it came to foreign law. The Bill of Rights includes phrases lifted directly from the Magna Carta.

It was noticeable that Senators were rarely present unless they were actually due to speak suggesting they hardly gave the hearing process the high priority one might have thought it should hold. However, in total it gave each of them an unparalleled 45 minutes or so of television time to present themselves to their voters. Hence Senator Cornyn of Texas's narrow focus on the issue of abortion, no doubt an important topic of debate in American politics and life but hardly the only game in town when it comes to determining suitability for a judicial appointment. Both sides knew her confirmation was pretty much a shoe-in and therefore used the occasion to establish their differing positions and attitudes in the mind of the US people.

I hold out little hope that the Kagan hearings will be any different. We have however gone from the most judicially qualified candidate in living memory to probably the least, so there will be a change in approach but I think the mechanism will be ultimately as unsatisfying.

After the Sotomayer hearings I dug out the Constitution to see exactly what it said about this confirmation process. Regarding the Powers of the President

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As was said during the Sotomayer debate the term "Advice and Consent" is ambiguous since it doesn't say clearly who makes the final determination, the President or Congress. However, that aside we see from this the following are required.

1) The President chooses and names the Candidate
2) S/he must listen to the advice of Congress about the Candidate
3) Congress must give its approval to a candidate (probably with a debate and vote)

Therefore I would like to offer my own alternative mechanism for a Supreme Court appointment.

Under its authority Congress establishes a non-partisan Appointments Office including nominees of each party and the ABA. This Office then determines a long list of candidates based on a variety of factors, including types of law practiced, judicial experience, other political or legislative experience etc. Potential candidates are asked if they are willing for their name to go forward and the list is published (publically). Candidates are rated in each criteria by the Office and a standard set of supporting documentation on each candidate is produced. The President choses their nominee from this list and this then goes to a full debate and vote in Congress. Whilst this is 2,1,3 rather than the 1,2,3 at present I still feel it satisfies the Constitutional niceties and has the benefit of everything being out in the open, Congress simply votes on the candidate they do not have to investigate every aspect of their past performance as that has already been done by the non-partisan Office and it should be far more rapid to move from nomination to approval in most cases. Of course, this is fantasy and will never happen.. but I can dream.

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