Less advice and consent?

Sometimes when assesing the US Constitution we should be careful that we are addressing the contents of the document and not actions by politicians who claim to be acting out their constitutional role. One such example is the process by which federal judges are confirmed.

The US Constitution states that Presidents shall make appointments with the advice and consent of the Senate. Students may have felt that they have been watching the Senate studiously and conscientiously carry out this role with the confimation hearings of Sonia Sotomayor. But in fact the Senate Judiciary Committee’s cross-examination is not a constitutional requirement. So does it serve any useful purpose?

Howard Fineman, writing in Newsweek, thinks not:

‘Nowhere is it written that the Senate must cross-examine nominees. That happened for the first time in 1925. President Eisenhower made three recess appointments, meaning that Earl Warren, William Brennan, and Potter Stewart all were seated and voting on the court before the Senate scrutinized them. The first hearing to become a TV soap opera was Sandra Day O’Connor’s in 1981—not coincidentally, a year after CNN invented the cable news business. Six years later, the Democrats savaged the hapless (and unrehearsed) Judge Robert Bork. A verb was invented. To bork: to deny a nominee a seat on the high court by portraying him or her as a mentally unstable wingnut.

A half generation later, the folk memory of Bork has combined with warp-speed, saturation media coverage to destroy what meager value the hearings ever had. The theory was that senators needed to handle the merchandise before giving “advice and consent” on the nomination. But now—recognizing the viral danger of YouTube and the like—the nominees arrive on the Hill encased in hard, shrink-wrapped plastic, the kind you can’t open without pointed scissors and a kitchen knife. The game (and it is one) becomes an atavistic search for an emotional gotcha moment, a test more appropriate to a hockey goalie than a Supreme Court justice. As long as she did not have a “meltdown,” said Sen. Lindsey Graham, Sotomayor would be confirmed. A worthy standard, indeed.’