Of all the interesting ideas floated during the Senate Judiciary Committee's hearings on the nomination of Elena Kagan--and there were almost none--perhaps the best came from the committee's most dependably goofy member, Sen. Tom Coburn (R-OK).
Coburn, a medical doctor who is conservative the way the Mariana Trench is deep, was not even present Tuesday as the Committee approved the Kagan appointment 13-6. He skipped out early on a meeting that was only half a Red Bull short of catatonia. The participants mouthed the correct talking points--"Kagan is a crazed anti-military activist" vs. "Kagan is as wonderful as Citizens United is terrible"--but the effect was a bit like an old Scooby-Doo cartoon. Only their mouths were moving, and doing so as little as possible.
So I actually regretted not hearing Coburn's undelivered closing statement. Throughout the hearings he has been the source of questions and arguments so bad they are almost charming, especially because he delivers them with such boyish, hey-let's-put-on-a-show enthusiasm. Most memorable was his attempt to get Kagan to promise to overturn any law requiring Americans to eat vegetables. Runner-up was his consternation at her refusal to agree that the "right to bear arms" pre-existed the Constitution, the Declaration of Independence, the United States, and indeed the dawn of man, coming directly from God Almighty in the beginning.
During Kagan's testimony before the committee last month, Coburn proposed that the Committee stop holding hearings, and that the nominee just meet privately with Senators. Such private meetings are routine--Kagan made the rounds of the Capitol in the weeks before her testimony. By all accounts she was impressive and engaging one-on-one with Senators left and right. After seeing the political system shred all potential for a useful public discussion with the nominee, I think the idea's worth looking at.
Many of the Senators present at today's session expressed frustration with what Sen. Arlen Specter (D-PA), who voted for her, called her "failure to answer questions that I think ought to have been answered." None of them noted that, at least half the time, the nominee's failure to answer arose either because the question was improper ("How will you decide any case involving my pet peeve?") or because the Senator asking them couldn't be bothered to listen to her answers and follow up. It would be tempting to conclude that the members include a high proportion of idiots; but that's not true. Senator Lindsey Graham (R-SC), the only Republican to vote for Kagan, mentioned the force that is dumbing down the process, and will continue to do so for the foreseeable future.
He and his fellow Republicans, he said, were in essence trapped between their regard for the 2008 election and the needs of 2010: "the elections that all of us are concerned with are our own coming up." Graham fretted that the pressure of elections was forcing his fellow Republicans into opposition to all Obama nominees regardless of their merit--in the face of the Constitution's assignment of responsibility to the President for nominating judges--and that, if the White House changes hands in 2012, the roles will simply be reversed.
Indeed, the upcoming off-year elections drove almost all of the boilerplate rhetoric lip-synched by members of the committee about "judicial activism" and "disingenuousness." Committee members said not a word to each other--"no minds in the committee will be changed by what we say to do," Chair Patrick Leahy (D-VT) noted--and many to the red-meat-hungry base voters and rapacious opposition researchers watching on C-SPAN. No deviation from the party line will be tolerated. And almost worse than apostasy would be allowing the nominee to give a genuine response about her own judicial philosophy.
I have an agonizing sense that, without the cameras, the Senators might actually have had a discussion with Kagan and learned something about what she actually thinks. Over and over she tried to begin the kind of discussions a nominee can properly engage in--about the nature of precedent, the role of "original intent" over time, the importance of judicial deference to legislative intent, the function of appellate jurisdiction over state-court proceedings, the evolution of "equal protection," the proper role of an advocate--only to be cut off with questions about how she will rule, or about whether she is a good person.
This brings us back to the Coburn plan. Senate hearings, with testimony by a nominee, are not required by the Constitution. Public confirmation hearings of any kind date only from 1916; Harlan Fiske Stone, nominated by President Coolidge in 1925, was the first nominee to testify before the committee in person (and he only did that because his nomination had been blocked on the Senate floor). Testimony did not become routine until 1955. And of course, it was only in the 1980s, with the Bork and Thomas hearings, that the public began to feel disappointed if there was no blood in the game.
What if the committee scrapped the empty pageant of snarling solon confronting evasive jurist? A hearing could be held for testimony by outside witnesses, and a business meeting like yesterday's for speeches and a final vote; but let the nominee meet privately with each member and discuss ideas. Senators would not need to fear--and that is the correct word--that the Tea Party Express, or moveon.org, was parsing every syllable for deviationism. Nominees might be able to answer questions without fearing that an incautious preposition would be pilloried on Fox News or Olbermann.
There's no secret that the current Supreme Court majority feels little for Congress but scorn. It's affecting their jurisprudence, and not for the better. I have often wondered whether some of the contempt arises because their last real encounter with the institution is the ignoble spectacle of their own confirmation. That's a shame.
The truth is that a number of the Committee's members, now as in past times, are very smart folks. A nominee might actually learn something from listening to them--and vice-versa.