Monday
Jan162006
Stop the hearings
Monday, January 16, 2006 at 3:00AM
By Ellen Ratner
"[The President] shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court, and all other Officers of the United States."
– U.S. Constitution, Article II, Section 2
When it came to evaluating nominees to the federal bench, these words – "Advice and Consent of the Senate" – used to be understood by all senators and most ordinary citizens. A candidate for a judgeship would first be proposed by the president and then investigated and publicly questioned by members of the Senate Judiciary Committee. Under our Constitution, the Senate is also given "advice and consent" authority for other officers and functions, such as ambassadors or treaties.
But federal judges are special and this power represents an awesome responsibility – unlike other constitutional officers, a judge holds power for life, subject only to good behavior. In short, a federal judge is the closest thing to a monarch that the Framers of the Constitution ever considered.
Do you think that the United States Senate properly discharged its "Advice and Consent" function this week during the hearings on Judge Samuel Alito's nomination to replace Sandra Day O'Connor on the U.S. Supreme Court? I ask this question not as a partisan (although I vehemently oppose Judge Alito's nomination) but as an American.
I have heard numerous complaints about these hearings from all across the political spectrum, and sadly, I have reached the conclusion that the Senate Judiciary Committee should simply stop – stop the nonsense, stop these Kabuki dances that pose as serious inquiries into a candidate's fitness for the bench, and simply suspend future hearings, which have become an insult to the American people, the nominees, the president and probably to many senators. Instead, the president should propose a candidate, the Judiciary Committee should be given 90 days to make a recommendation, and if recommended, the nomination should go directly to the Senate floor for an up or down vote.
Consider this week's Alito highlights: The judge's wife fled the hearing room in tears. Sens. Arlen Specter and Ted Kennedy exchanged hissy fits over whether or not to go into executive session to consider subpoenaing documents that actually never had to be subpoenaed. And finally, anyone who watched every second of the hearing, if hypnotized, given truth serum and then tortured wouldn't be able to explain where Judge Alito stood on the only issues that mattered – a woman's right to choose and whether or not he'd support the president's right to torture people and diminish their civil rights. Judge Alito, a product of Princeton and Yale Law School is no dummy – he took good notes during the Ruth Bader Ginsburg and John Roberts hearings, and learned the law of the Senate – if asked, don't tell.
The Senate operated on the exact opposite principle – tell all and ask nothing. Most senators used the vast majority of their question time (over 70 percent in some cases) not to ask any questions, but to tell us everything. We learned about Joe Biden's family background and John Cornyn's feelings on abortion; about Ted Kennedy's fears and anxieties and that Lindsey Graham is courtly and courteous to women. The senators – inheritors of the tradition of Clay, Webster, Sumner, Lodge, Vandenberg, Johnson, inter alia in fact proved that they have been mostly influenced by Oprah Winfrey, Montel Williams and, at least while Specter and Kennedy clawed each other, Jerry Springer.
Unfortunately, this is continuing evidence of the Senate's decline as an institution. Gone are the great debates over war and peace as the Senate consents to foolishly broad resolutions (with matching foolish debate) that enfranchise presidents to grab powers without any advance public discussion. For example, shouldn't the Senate have demanded that if President Bush wanted large powers to wage a war on terror, that he ask for a formal Declaration of War? That way, hawks could have made their case and doves could have made their case, a vote taken, and the public at least enlightened on the question of "why we fight." Instead, the Senate shirked, the White House grabbed, and we now inhabit a twilight of not-war-not-peace.
And it is the same with Senate consideration of federal judicial nominees. They've become so partisan that the nominees keep their mouths shut while the senators preen for the cameras as they await instructions from the special interests who help pay their campaign bills – anti-abortion groups, pro-abortion groups, pro-civil rights groups, anti-ACLU types, evangelicals, atheists, whatever. Meanwhile, no insight is gained, no enlightenment shed, and nothing is learned.
It's no longer Advice and Consent. To suffer through this buffoonery is now Advice and Relent. Only later, after intellectually dishonest nominees slip through this fraudulent process, does it become Advice and Repent. Stop the hearings.
"[The President] shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court, and all other Officers of the United States."
– U.S. Constitution, Article II, Section 2
When it came to evaluating nominees to the federal bench, these words – "Advice and Consent of the Senate" – used to be understood by all senators and most ordinary citizens. A candidate for a judgeship would first be proposed by the president and then investigated and publicly questioned by members of the Senate Judiciary Committee. Under our Constitution, the Senate is also given "advice and consent" authority for other officers and functions, such as ambassadors or treaties.
But federal judges are special and this power represents an awesome responsibility – unlike other constitutional officers, a judge holds power for life, subject only to good behavior. In short, a federal judge is the closest thing to a monarch that the Framers of the Constitution ever considered.
Do you think that the United States Senate properly discharged its "Advice and Consent" function this week during the hearings on Judge Samuel Alito's nomination to replace Sandra Day O'Connor on the U.S. Supreme Court? I ask this question not as a partisan (although I vehemently oppose Judge Alito's nomination) but as an American.
I have heard numerous complaints about these hearings from all across the political spectrum, and sadly, I have reached the conclusion that the Senate Judiciary Committee should simply stop – stop the nonsense, stop these Kabuki dances that pose as serious inquiries into a candidate's fitness for the bench, and simply suspend future hearings, which have become an insult to the American people, the nominees, the president and probably to many senators. Instead, the president should propose a candidate, the Judiciary Committee should be given 90 days to make a recommendation, and if recommended, the nomination should go directly to the Senate floor for an up or down vote.
Consider this week's Alito highlights: The judge's wife fled the hearing room in tears. Sens. Arlen Specter and Ted Kennedy exchanged hissy fits over whether or not to go into executive session to consider subpoenaing documents that actually never had to be subpoenaed. And finally, anyone who watched every second of the hearing, if hypnotized, given truth serum and then tortured wouldn't be able to explain where Judge Alito stood on the only issues that mattered – a woman's right to choose and whether or not he'd support the president's right to torture people and diminish their civil rights. Judge Alito, a product of Princeton and Yale Law School is no dummy – he took good notes during the Ruth Bader Ginsburg and John Roberts hearings, and learned the law of the Senate – if asked, don't tell.
The Senate operated on the exact opposite principle – tell all and ask nothing. Most senators used the vast majority of their question time (over 70 percent in some cases) not to ask any questions, but to tell us everything. We learned about Joe Biden's family background and John Cornyn's feelings on abortion; about Ted Kennedy's fears and anxieties and that Lindsey Graham is courtly and courteous to women. The senators – inheritors of the tradition of Clay, Webster, Sumner, Lodge, Vandenberg, Johnson, inter alia in fact proved that they have been mostly influenced by Oprah Winfrey, Montel Williams and, at least while Specter and Kennedy clawed each other, Jerry Springer.
Unfortunately, this is continuing evidence of the Senate's decline as an institution. Gone are the great debates over war and peace as the Senate consents to foolishly broad resolutions (with matching foolish debate) that enfranchise presidents to grab powers without any advance public discussion. For example, shouldn't the Senate have demanded that if President Bush wanted large powers to wage a war on terror, that he ask for a formal Declaration of War? That way, hawks could have made their case and doves could have made their case, a vote taken, and the public at least enlightened on the question of "why we fight." Instead, the Senate shirked, the White House grabbed, and we now inhabit a twilight of not-war-not-peace.
And it is the same with Senate consideration of federal judicial nominees. They've become so partisan that the nominees keep their mouths shut while the senators preen for the cameras as they await instructions from the special interests who help pay their campaign bills – anti-abortion groups, pro-abortion groups, pro-civil rights groups, anti-ACLU types, evangelicals, atheists, whatever. Meanwhile, no insight is gained, no enlightenment shed, and nothing is learned.
It's no longer Advice and Consent. To suffer through this buffoonery is now Advice and Relent. Only later, after intellectually dishonest nominees slip through this fraudulent process, does it become Advice and Repent. Stop the hearings.
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