Erwin Chemerinsky’s excellent new book The Case Against the Supreme Court points out a lot of problems plaguing our constitutional process, but I would like to focus on one vice early on that infects the whole—- the fact the nominees to the Supreme Court routinely misstate their views on constitutional issues during their confirmation hearings.
Remember that these hearings before the Senate Judiciary Committee are the only place where nominees to an extremely powerful post with life tenure can be questioned about how they might perform their duties.
Dean Chemerinsky’s description of the hearing on the nomination of Samuel Alito to the Supreme Court by George W. Bush is a good example of the problem:
Everyone in the room, Republicans and Democrats alike, knew that Alito was very conservative and would be a very conservative Supreme Court justice…. But Alito presented himself as an open-minded moderate without a judicial ideology. (103)
Alioto was confirmed and, as Chemerinsky comments, “has turned out to be just as conservative as everyone expected him to be.” (103) And since Justice Alito was only fifty-five years old when he was confirmed, we can expect a judicial career of twenty-five to thirty years of decisions inconsistent with the “moderate” views he espoused at the his confirmation hearings.
Chemerinsky is quick to point out that nominees by Democratic presidents are no more candid than Alito in their testimony at their confirmation hearings. He points out how appointees like Elena Kagan and Sonia Sotomayor also “spent their time denying that they were liberals and presenting themselves as open-minded moderates”(103).
One could argue that little real damage is done here because no one believes the nominees’ testimony. They should be seen as empty words spoken only for show. But that is exactly the problem. Lies by future justices cheapen judicial speech. Their words and our trust is all that judges have. If judges talk like politicians, why should we believe they don’t act like politicians?
It’s also not true that these are “white lies” are only spoken for show. These misrepresentations give moderate Senators “cover” to vote to confirm a justice who they could not support if his or her true views were on the public record.
There’s a lot of blame to go around here. The nominees fail us when they misstate their views, but the Senators also fail us when they sit silently through testimony they know is false. And the problem is more than one of abstract morality. These lies frustrate the purpose of the confirmation process– to assess how the nominee will perform in office.
Probity is not a detail. It should itself be a necessary qualification for confirmation.