Senator Hatch did an outstanding job of describing Chuck Schumer's questions.
The 'Right to Question'?
Let the Roberts hearings reveal what the questioners think
BY MANUEL MIRANDA
Tuesday, September 13, 2005 12:01 a.m. EDT
Nowhere does the Constitution say that senators have a right to question Supreme Court nominees when they give the president "advice and consent" on his nominations. Yet here we are, about to begin a two-day query-fest. This week senators will engage Judge John Roberts in at least 900 minutes of question-and-answer. As Sen. Orrin Hatch of Utah said in 2003, some colleagues will even ask "dumb-ass questions." That was Mr. Hatch speaking of his colleague Chuck Schumer of New York when Mr. Roberts appeared before the Judiciary Committee as a nominee for the U.S. Circuit Court of Appeals for the District of Columbia.
Nevertheless, it is a wonderful ritual. As I frequently remind my wife in events much less momentous: "Only in America." And I mean it, each time. In this case, I recall the words of the late Georgetown law professor Richard Alan Gordon who reminded students that "debate is the servant of truth." Although real debate is hard to discern in the so-called greatest deliberative body, a Senate Judiciary Committee confirmation hearing for a Supreme Court nominee, which is in essence a debate over the meaning of the U.S. Constitution, is as good as it gets.
As someone not born in this country, I cherish these rituals of American public life. Not more than others do, I'm sure, but very much. As I tell Hispanic immigrant groups, it is for a reason that this nation is grand. Mostly, I tell them, it is because we take our Constitution and laws seriously. Another reason is that our civic rituals, whether new or old, are founded on the notion that ultimately it is the people who decide the future through elections, and that to this end, they should hear and see their elected representatives, and know the issues. Once, it was through stump speeches and all-afternoon debates at picnics; now it is through C-Span and PBS.
In the past few years, thanks to the misguided Mr. Schumer, we have openly debated whether ideology should play a role in the Senate confirmation process. Of course, old-fashioned politics has always played a role. In 1968, Justice Abe Fortas's promotion to chief was blocked for many reasons, but probably the most determinative was that President Lyndon Johnson had slighted the powerful Sen. Richard Russell, Democrat of Georgia, who allied with Republicans wanting to preserve the chief justice seat for the likely next president, Richard Nixon.
Introducing ideology, however, is more than just politics as usual, and that is what the debate over questions to a judicial nominee is all about. Its purpose is, as Mr. Roberts pointed out yesterday, to determine whether a judge will be a batter or pitcher, and just an umpire.
In trying to persuade colleagues and the media that ideological litmus tests should be standard, Mr. Schumer did not have an original thought. In 2001, Democratic senators went on retreat with some of the country's best-known liberal professors. Making ideological tests accepted practice in confirmations was the only way, they told Democrats, that they could justify slowing down the new president's judicial nominations. And, they added, it should begin with appellate appointments so that Americans get used to it when a Supreme Court nomination came along.
Luckily, the liberal plan backfired on Democrats in two consecutive elections; the circuit nominees they blocked are mostly now all seated; and they are poised to lose their ever-more-risible effort when the Senate confirms John Roberts in two weeks. As their effort sinks, Americans will see a spirited debate over the Constitution and see different types of public servants talk to each other over heady issues.
It is unfortunate that we do not scrutinize Supreme Court nominees more often. If we did, Americans would better understand the role of the third branch in their lives and the lives of their children. We would also better know the significance of voting for a Republican or a Democrat for president or senator, the two public offices that decide for the people who shall decide federal cases.
When I hear that the hearing for Justice Byron White in 1962 lasted only 15 minutes and included just eight questions, it becomes obvious why Americans slumbered for decades while the federal courts transformed their culture, rewrote their Constitution, and usurped their rights. Let us hope John Roberts gets asked tough questions, and that he will choose not to answer because a judicial nominee is not a politician. And let us hope the senators of both parties show America what they are about. Debate is the servant of the truth
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
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