Don't make a circus of Sotomayor hearing

Just when political junkies were contemplating a long, dry summer, along comes a U.S. Supreme Court vacancy and the prospect of confirmation hearings.

President Obama has nominated federal appeals court judge Sonia Sotomayor, a Hispanic woman who spent her childhood in a Bronx housing project and used her intellect to crack the Ivy League and rise in the judiciary.

Sotomayor’s compelling story, her experience as a prosecutor and corporate lawyer, and her respect for essential freedoms make her, at first glance, an appealing nominee.

Not surprisingly, her nomination had an adrenaline-like effect on activists and interest groups, who leaped to criticize or defend the choice. Members of Congress fired off news releases assuring constituents they’d keep an open mind, while hinting of profound concerns or thunderous approval.

Senate confirmation hearings of Supreme Court nominees have evolved into one of Washington’s great sound-and-light shows. Senators sound off, that is, under the glare of TV lights.

But the American public learns too little about the person who has been nominated to uphold the Constitution and shape the laws of the land. Nominees are coached to dance around questions and to avoid, at all costs, a declaration of how one would be inclined to rule on any particular issue.

The two most recent confirmation hearings — for Chief Justice John Roberts and Justice Samuel Alito — involved so much bobbing and weaving that pundits likened them to Kabuki theater.

Some frustrated legal scholars have proposed that nominees stay home and allow senators to decide based on their writings and decisions. That was the norm before the 1950s, when Southern senators began demanding that nominees appear before the Judiciary Committee to answer questions about school desegregation.

Confirmation hearings do offer Americans a chance for a long look at a prospective justice, before he or she steps into the protected environs of the U.S. Supreme Court. Appearances by nominees shouldn’t be eliminated, but the process should be improved.

What to include:

•A look forward. Senators should focus less on the hot-button cases of the past and more on issues likely to require legal clarification in the future. Examples include the ethical and legal dilemmas posed by genetic medicine, the rights of enemy combatants and the privacy considerations in the Internet age.

•A look back. Questions about a judge’s past rulings are fair game.

•Open-ended inquiries. Hypothetical situations and questions about process can reveal something of a nominee’s presumptions and the ability to think on his or her feet.

What to avoid:

•Windy speeches by senators. Recent confirmation hearings have featured 10-minute soliloquies by senators, followed by the question, followed by a brief nonanswer from the nominee.

•Baseball analogies. Roberts started these with his comment that a justice should act as an umpire. “Umpires don’t make the rules; they apply them,” he said. Senators picked up on his theme, so the hearing at times seemed like a sports talk show. Besides getting tiresome, the analogy was overly simplistic. Supreme Court justices inevitably are handed cases for which there is little Constitutional precedent. Sometimes they do make the rules.

•Gotcha questions. Senators lob these to impress constituencies on the right or the left, not to ascertain how a justice would approach a case. Asking a nominee to describe the stage at which human life begins, for example, doesn’t necessarily indicate how a justice would rule in an abortion case.

Remember, the goal is to learn as much as possible about the thinking of the nominee, not of the Judiciary Committee members. Please, senators, save the political posturing for the next campaign.
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What does the author of this article mean by, "bobbing and weaving" that occurred in the recent confirmation hearings?

Do you think that Supreme Court nominees should appear before the Judiciary Committee? If so, should the interview be limited to questions about their prior writings and decisions? If not, why not?

What is significant to you about President Obama's nomination of Sonia Sotomayor?
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