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Senate Competence and Confirmations:

Joe Malchow points me to Professor Dershowitz's Chicago Tribune column "The wrong questions from the wrong questioners." (registration required). Dershowitz argues that the problem with Senate confirmation hearings is the Senators themselves: (1) they are too long-winded and self-absorbed, more concerned about speechifying and preening than questioning the nominee, and (2) they lack the expertise in law and cross-examination skills to do a competent job of the matter. While nothing can be done about the former problem, Dershowitz argues that the latter problem can be corrected by hiring trained lawyers to conduct the questioning:

The only way to remedy these problems is to get senators out of the questioning business. I propose that the Judiciary Committee take a page from other congressional committees and hire outside lawyers to conduct their hearings. They should bring in three or four first-rate trial lawyers with backgrounds in constitutional scholarship to ask the hard questions. Of course committee members will consult with the litigators to ensure that they cover all the issues of concern to the senators. But during the hearings, the senators' job will be to listen and then to vote.

He adds, "It is astounding that he should be allowed to join the court without identifying the political lens through which he will confront cases."

Leave aside for the moment the assumption that the purpose of confirmation hearings today is actually to elicit the nominees views on law, rather than the very Senatorial speeechifying that Professor Dershowitz bemoans. Why is it "astounding" that a person could join the Supreme Court without identifying the political lens through which he will confront cases? If the Senate lacks the expertise to make in-depth judgments about law, there are then two possible alternative responses it could take. First, we can try to provide the Senate with expertise in order to carry out this task. Or second, we could restore the Senate's functions to those for which it does have expertise. It is not obvious to me that the former approach is inherently preferable to the latter. For instance, recall the vision of the Advice and Consent Clause in Federalist 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

Under this view, the purpose of the Advice and Consent Clause is to ensure the independence of the judiciary brach from both the executive and legislative branches, by ensuring the qualifications, integrity, character, and independence of nominees and preventing the nominations of Presidential cronies. And, of course, for well over a century the Senate conducted no hearings at all on Supreme Court nominees.

One may agree or disagree with the more humble vision of the advice and consent power laid out in the Federalist versus that assumed by Professor Dershowitz. But it is far from "astounding" to consider the Senate conducting an inquiry focused on the character, independence, and qualifications of a Supreme Court nominee, rather than their political views. This is a more restrained function, and one for which the Senate quite obviously is competent to carry out. And, as Professor Dershowitz himself seems to implicitly comprehend, the structure, power, and expertise of the Senate (perhaps not coincidentally) seems to be much better-equipped to conduct the more tightly-focused inquiry described in the Federalist, rather than the sprawling process that it has become--and which Dershowitz wants to enlarge still further.

One also needs to keep in mind that the Seventeenth Amendment has dramatically reshaped the structure of the Senate in such a manner that I would argue it has made the Senate even less-equipped to effectively carry out the sort of inquiry that Professor Dershowitz advocates. The indirect election of Senators under the original constitution was designed to give Senators a degree of quality and independence from politics that is absent today. This could cut either way, but to my mind this increased politicization of the Senate tends to make the Senate less, rather than more, equipped to responsibly and competently carry out the advice and consent powers given to it under the Constitution. As we have seen, this is a primary reason why confirmation hearings have become precisely the political circus that Dershowitz deplores. Thus, if anything, I think that this change points in the direction of encourging a more restrained view for Senate confirmations, rather than a still more-expansive view.

Put otherwise, I think it is an open question as to whether the Framers would have entrusted the advice and consent power to the Senate in the same manner had they known that eventually Senators would be elected directly by the people in partisan elections, and as a result, the nature and tenor of the confirmation process would deviate so dramatically from what was originally anticipated.

For what its worth, I would say the same thing about Senate trial on Impeachment--as demonstrated by almost farcical political and partisan nature of the Clinton impeachment trial. When the Framers entrusted to the Senate the power to conduct trials regarding impeachment, they anticipated (whether or not naively) that the indirect election of Senators by state legislatures would tend to elevate to the Senate individuals largely independent of political pressures and selected based on their distinction, rather than politics (in contrast to the House, of course). One can see how with that anticipation the Framers could imagine the Senate sitting as a sort of jury weighing the evidence on the impeachment of a public official (such as the President). Had the Framers anticipated that Senators would later come to be directly elected, would they have entrusted to the Senate the power to conduct impeachment trials? It is not obvious to me that they would have. The performance of the Senate during the Clinton impeachment showed the way in which impeachment is now an extension of politics, rather than the Senate sitting as a sort of sober jury, relatively independent of political pressures.

So perhaps the real question to draw from these hearings is not how to enable the Senate to compensate for its lack of expertise so as to enable it to dig still deeper into the nominee's political vision, but rather, whether the Senate should consider confining itself to a scale of inquiry for which it actually might have expertise, and which arguably fits better into the logic of the Advice and Consent Clause in the first place, namely to preserve the independence of the Court from the other branches of the government. And which, perhaps not coincidentally, also seems more compatible with the actual institutional capabilities and expertise of the Senate.

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