The Unbearable Emptiness of Hearings: Tom Coburn Is Right

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.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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