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.

Anderson (mail) (www):
I too have sometimes wondered whether the 17th Amendment was a bad idea. Wouldn't appointed senators be less subject to the bribery of "campaign donations"?

As for quality, before the 17th, Mississippi sent James Vardaman; after it, Theodore Bilbo. A slight decline, if any measurable change.
1.23.2006 10:45am
The problem I see is that the Senate is the only body we have, other than the President, with the power to ascertain the nominees' views. Given the high apparent corellation between Justices' political views and their voting behavior and the vastly differing views of constitutional and statutory interpretation taken by left and right, it is vital that *someone* try to ascertain the nominee's views and determine if they're views we want to see on the court for the rest of the nominee's life. The Senate is ill-equipped for this task, but it's the only game in town.

You may think it isn't necessary or important for anyone to ascertain the nominee's views, but that substantive position needs a substantive defense.
1.23.2006 10:46am
Nobody Special:
"trained lawyers."

Hah. Most of the judiciary committee have law degrees (admittedly, some only barely. See, e.g., Biden). They just suck at what they do.

Is it any surprise, though, that the most reasonable Democrat on that committee was Senator Kohl, who was an accountant, not an attorney? He was the only one who seemed interested in finding out what Alito thought, rather than (like his Democrat colleages) carrying on about some caricature of Alito or (like his Republican ones) asking dumbass questions like "how is it that you came to be so astoundingly awesome, mr. genius sir?"
1.23.2006 11:12am
countertop (mail):
I'd be interested to see if any one any where can point me to an instance of the senate holding a committee hearing and having someone other than the Senators conduct the hearing (as Prof. Dershowitz implies has occurred).
1.23.2006 11:17am
Mac (mail):
"But during the hearings, the senators' job will be to listen and then to vote." What, in the behavior of the Senate makes anyone think the Senate would ever agree to this? Or, for that matter, what makes anyone think the Senators would even bother to show up for the hearings if the TV cameras are not trained on THEM?
1.23.2006 11:25am
Defending the Indefensible:
Question: Is the seventeenth amendment potentially unconstitutional? Assuming it has never been subjected to challenge, we presume it to be, but if a state legislature withstood the political pressure and appointed a senator other than one chosen by the people of that state (assuming that state constitution provided for this), how and where would this be resolved?

In pertinent part, Article V requires "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." A senator chosen by the people of the state is not answerable to the federally sovereign state.

Even putting aside any questions of constitutionality (say that Article V was implicitly repealed in pertinent part if necessary), I think the seventeenth amendment inarguably reduces federalism.
1.23.2006 11:29am
DaveK (mail):
Prof. Zywicki:

I find your analysis of the effect of the Seventeenth Amendment on the Senate's Advice and Consent and impeachment trial powers to be perceptive and intriguing.

But I'm not sure why it follows that because the Seventeenth Amendment made the Senate more political, the Senate should try to abstain from performing its powers politically. It seems as though the argument could cut the other way: the Framers intended the Senate to be a less political body, but the Seventeenth made it into a political one without abrogating its powers. Thus--one argument might go--the Senate's interest in checking the President has become more political in character, and the directly elected Senators are doing their job if and only if they apply the full extent of their constitutional powers towards furthering the political positions that got them elected.

However, even if you subscribe to a narrower, Federalist No. 76-based view, in which the purpose of the Advice and Consent power is and remains "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", one component of this is determining whether Supreme Court nominees have a political agenda, or whether they will follow some apolitical philosophy in interpreting the Constitution. Another component of this is making sure that a nominee is not too deferential to the executive (either in general or to the current President), and that the Supreme Court's role as a check on executive power is not compromised.

Determining a nominee's judicial philosophy is part and parcel of both of these objectives.

Thus, while I'm not sure what I think of Prof. Dershowitz's proposal, I disagree with how you've framed the question. Even if the goal should be "preserv[ing] the independence of the Court from the other branches of government", this does not require--or even suggest--"confining" the Senate's inquiry in any way.
1.23.2006 11:29am

Todd Zywicki makes a couple of interesting assertions that the founders may have rethought some senatorial powers if they had anticipated direct elections of senators. That may be true, but to echo SLS, who else would perform these functions? If there is no better group available, the questions is sort of moot, unless for example, you would simply allow the president to appoint officials and judges with no review at all (or give advice and consent to the House - *that* would be a big improvement, at least for the comic value of the hearings).

1.23.2006 11:32am
byomtov (mail):
The issue concerning the 17th Amendment may be interesting, but it is hardly an argument against the current procedures. Maybe the Framers would not have entrusted confirmation and the duty to try impeachments to the Senate had they expected it to be popularly elected. But so what? When the 17th Amendment was proposed it was known that the Senate had these powers, and the Amendment was adopted anyway.

As to the Senate inquiring into the "independence" of the nominee, I would say that "independence" is a very broad term. Many questions about a nominee's political and legal views could be characterized as questions about independence. In the case of Alito, for example, questions about deference to executive power fall into this category. Indeed we routinely expect Presidents to nominate judges, and especially Supreme Court justices, who they find politically agreeable. The issue of judicial appointments has been part of presidential campaigns for many decades.

There seems to be an implicit assumption in many of these discussions that judges, alone among mortals, can rule on questions of great political importance without letting their personal opinions influence their thinking - that they are guided purely by the light of reason. And just in case anyone finds this hard to swallow, there is the backup assumption that nominees' previously stated opinions, no matter how explicitly expressed, are not to be relied on as indicators of their political views.

I don't buy this. I think the job of the Senate includes probing the nominee's views, and deciding whether political opinions will unduly influence decisions. And if it will make anyone feel better, I think that this is part of inquiring into a nominee's independence.
1.23.2006 11:51am
Anderson (mail) (www):
In pertinent part, Article V requires "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." A senator chosen by the people of the state is not answerable to the federally sovereign state.

I don't get the idea that "the State" loses anything, DTI; you seem to argue that the State is not the same as its people.

In any event, 3/4 of the then-States had to sign onto the 17th for it to pass, right? So your suit would have to be brought by some State that never ratified it (see "without its Consent," above). Mississippi only got around to ratifying the 13th a few years ago; maybe haven't gotten to the 17th yet ....
1.23.2006 11:55am
Anderson (mail) (www):
Rather frighteningly, Zell Miller is actually campaigning against the 17th. (Went to Wiki to see if it listed which states have approved the amendment (it doesn't).)

Disconcerted as I am that Miller, Alan Keyes, and Lew Rockwell are opposed to the 17th Amendment, I nevertheless believe that it may be a bad idea anyway.
1.23.2006 11:59am
markm (mail):
I favor repealing the 17th Amendment because it seems to have helped federal power become overly dominant over the states, but I have doubts about the claim that the 17th Amendment made the Senate more political. It forced them to make their political pitch to the whole state rather than just the state legislators, but politicking the state legislators was still politicking. (Some Senate candidates used plain bribery instead - something that's impractical with several million voters - but I very much doubt that improved the stature of the Senate.)
1.23.2006 12:29pm
JohnO (mail):
Didn't Arthur Liman (I think that was his name) question Ollie North at the Senate Iran-Contra hearings on behalf of the Dems?
1.23.2006 12:29pm
Kevin Lynch (mail):
DTI asks: Is the seventeenth amendment potentially unconstitutional?

I'm not sure I see how an amendment could be unconstitutional, no matter how much it changes the text or meaning of (any part of) the Constitution. After all, once ratified following the prescribed procedures, the amendment becomes, by definition, a coequal part of the Constitution; It doesn't become a "lesser" part of the Constitution whose rules or requirements are on valid unless they conflict with an older part of the Constitution. Therefore, if Amendment 17 is in conflict with Article 5 (about which I have no opinion), the relevant text of Article 5 becomes null and inactive when Amendment 17 is ratified.
1.23.2006 12:38pm
Houston Lawyer:
All this really comes down to is Dershowitz stating that he could have done a better job pinning Alito to the mat. I, the expert cross examiner, would have shown Alito to be the extremist that you and I know him to be. Dershowitz seems to be dreaming of some "Perry Mason" type moment when Alito breaks down under the relentless questioning of his betters and confesses all. Then all the American people can pat Dershowitz, the true hero, on the back as we go back to the Myers nomination.
1.23.2006 12:55pm
KMAJ (mail):
An interesting side note, Madison originally proposed a two thirds vote be required to reject/defeat a nomination:

The motion made by Mr. Madison July 18.

11 &then postponed, 'that the Judges shd. be nominated by the Executive &such nominations become appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature," was now resumed.

Mr. MADISON stated as his reasons for the motion. 1. 12 that it secured the responsibility of the Executive who would in general be more capable &likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment. — 2. 12 that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. 12 that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the States, should be represented. The Executive Magistrate wd. be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye. Northern States, a perpetual ground of jealousy &discontent would be furnished to the Southern States.
1.23.2006 1:18pm
Anderson (mail) (www):
I'm not sure I see how an amendment could be unconstitutional, no matter how much it changes the text or meaning of (any part of) the Constitution.

Kevin, the portion at issue forbids its own amendment in some respects, which certainly opens up recursive issues to warm the heart of a Kurt Goedel or Jacques Derrida, but which I think we plain American folk would just honor at face value.
1.23.2006 1:24pm
Why would anyone read Malchow?
1.23.2006 1:26pm
Robert Schwartz (mail):
Clearly the problem would be solved by not broadcasting the hearings.
1.23.2006 1:48pm
JosephSlater (mail):
Houston Lawyer and I are on the opposite sides of most issues I've seen debated here, but I think he has this one pegged exactly right.
1.23.2006 1:55pm
KMAJ (mail):
When we discuss ratification, I think both the 16th and 17th Amendments need their ratification process subjected to scrutiny. I know the 16th Amendment has come under very close scrutiny, and has been documented that it was never ratified by 3/4ths of the states, in fact very few states even voted on the actual wording, but engaged in amending it before voting, which was not in the states power to do, thus what they voted on was not what we have in the 16th Amendment. At best, only two states ratified the 16th as worded, but Secretary of State Philander Knox falsely claimed 38 states ratified it in 1913.

Knox's successor, under Woodrow Wilson, William Jennings Bryan announced the 17th Amendment ratified, also in 1913. Has anyone ever researched in detail the ratification process of the 17th Amendment ?

C. H. Hoebeke, a librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies, provides an interesting foot noted anti-17th Amendment analysis.

Democratizing the Constitution:
The Failure of the Seventeenth Amendment
1.23.2006 2:12pm
eddie (mail):
I haven't seen any persuasive argument that says the advise and consent roll of the Senate would be any different today if the 17th Amendment had not be ratified.

In fact, I feel the process would be more politicized. Senators appointed by existing members of the two party state political order will have more fealty to the "partisan politics" from whose loins they have been conceived. Or is someone actually going to make the argument that direct elections are the root of all "partisan" political problems?
1.23.2006 2:19pm
Thorley Winston (mail) (www):
Clearly the problem would be solved by not broadcasting the hearings.

Or at least reduce it considerably, removing cameras and broadcast equipment from the hearings would remove a lot of the incentive for Senators to preen and posture for their audience if they know in advance that their audience is at most only going to be able to read a transcript or the official record of the proceedings.
1.23.2006 2:38pm
The rejection of Miers (who was seen as too much ofthe President's crony) in contrast to Roberts' (and soon Alito's?) confirmation might show the Senate as a whole acts more like Federalist 76 intended at least for Supreme Court nominees (excepting perhaps Bork).
1.23.2006 2:40pm
CJColucci (mail):
How about this deal: the Senate restricts itself to considering "character, independence and qualifications" as soon as the President does likewise?
1.23.2006 3:56pm
volokh watcher (mail):
Mike Chertoff -- current Sec'y of Dept of Homeland Security -- was Republican majority counsel to the Senate Whitewater Committee, chaired by former Senator Al D'Amato, in late '95 through 'early '96. (Richard Ben Veniste was counsel for the Democrats on the Committee.)

Chertoff was called D'Amato's attack dog because of his aggressive questioning of witnesses during the committee hearings.
1.23.2006 4:03pm
Anderson (mail) (www):
Madison originally proposed a two thirds vote be required to reject/defeat a nomination:

James Madison, that relentless advocate of executive tyranny!

(Actually, I'm reading The Age of Federalism, &I hadn't realized how pro-executive Madison was, at least until he saw Hamilton going to work.)

As for broadcasting or not, anything that spares me Biden in that Princeton hat is a good idea.
1.23.2006 4:07pm
farmer56 (mail):
Dershowitz is a person I would love to buy for what he is worth, and sell for what he thinks he is worth. Alito is sooo much smarter than Dershowitz, a Fact proven by Dershowitz asumming that a SCOTUS conffermation hearing is the same as a civil or legal trial. AND Dershowitz is a genious? SUUUURE. Dershowitz is peeved that he was not nominated to SCOTUS even tho he is the brightest mind of all legal history.

An aside, Take the cameras out. They serve no purpose. A written transcript would be availible to all within ten minutes of the close of the hearings, each day. BUT Biden and Kennedy are even more incoherent in print, than video and audio.
1.23.2006 4:59pm