How Does a Bad Start End?

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Book/film List / Democracy's Constitution

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.

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