‘If it ain’t broke, don’t fix it.’ Unfortunately in the case of confirmation hearings, it is and it’s about time. The process is a strange one – to the point of seeming like a bit of any oxy-moron. We take arguably the least publicly visible and most apolitical institution of our three branches of government and introduce new candidates through a public and highly political spectacle. The results – this has at least arguably been an influential factor in shaping the press-shy to anti-press attitudes that mark some justices on the Supreme Court bench that scraped through their confirmation hearings – think Thomas. At their best, the hearings of the more media savvy and shiny – think Roberts – are marked by meaningless quotables about umpires that don’t make the rules but apply them. This is a rhetoric that has been heralded by the right and adopted by the left as a coping mechanism to navigate the potential pitfalls of confirmation hearings. Robert Bork’s Supreme Court legacy will be not through an opinion – to be read at least by future generations of law students – but through the cautionary tale that was his confirmation hearing. A lesson well taken from Bork’s book is simply to say nothing divisive and as little of substance as possible if you would like to be confirmed. Unfortunately, the primary politics and viewpoints the American public learns from this process are those of the showboating senators who make the laws to be applied by the allegedly blank slate umpires that apply them.
Perhaps the easiest solution to the current confirmation hearing concerns is to scrap them altogether. They seem to do more damage than actually imparting of information or meaningful dialogue, so scrap the charade. The biggest problem with this ‘quick fix’ is that this is one of the few chances for the American public to have exposure to its Supreme Court judiciary. While this a broken form of exposure and I believe that the public would be better served by a meaningful process, the answer that the Supreme Court needs today is not less coverage and public accountability. A fix not a scrap, is the better solution. And perhaps the fix must come partly from the nominees themselves, as Kagan suggested in her critiques of the process. Regardless of the nature of this adversarial process, they must not shy away from giving the answers of substance and representing themselves accurately to the public. However, most commentators seem to agree that Kagan’s hearings themselves, while something more than evasive answers and meaningless metaphors, were something short of a revolution in the way that Supreme Court hearings will be conducted henceforth. And while a frank, meaningful conversation is a far more productive and meaningful message to send the American public then evasive answers and avoiding the questions, arguing that a nominee who truly wanted to make it to the bench should offer some more radical and revolutionary version of a hearing then Kagan also likely misses the mark. Arguably her hearings offered a glimpse of a more useful dialog without rocking the boat hard enough to risk going overboard. I think the nominees themselves, assuming they are not all truly blank vanilla slates with no life experiences or personal beliefs, must navigate the confirmation process with as much honesty tempered with caution as possible if they wish to share something meaningful about themselves with the American public and still have a chance to be successful in today’s political and media climate.
So if we aren’t scrapping the process and can’t control the actions of the nominees or senators getting in sound bites, the other key players that can make a difference and create a more productive and meaningful process are the press. Press outlets need to send the reporters that actually cover the courts to capture this process. Taking a process involving what is ideally the least politicized branch of our government’s three and putting the coverage in the hands of political reporters whose daily job is to cover stories from a more political viewpoint seems to ensure that those whose goals are to politicize this experience will be met. While I do not believe that effective coverage of the courts involves a pure ‘Narrative B’ approach, coverage by reporters that at least understand and strive for this approach would create less polarizing coverage. Another way to remove some of the circus effect of the media coverage of confirmation hearings would be to remove the cameras from the process. The pro to this approach is that it may remove some of the motivation behind politically divisive questioning of senators that appears to be more about creating a sound bite for themselves then getting ‘tough answers’ from the nominees. The con that unfortunately likely outweighs that is again giving greater isolation and insulation from the American public and modern media to an already sheltered branch of US government. Ideas such as creating a paper confirmation process or closing the doors of this process to the American public have also been advanced. Again, in my view these suffer from the fatal flaw that they shelter an already overly sheltered branch of the government from appropriate public scrutiny.
I’m not sure that my solution solves much or even advocates much change to a broken system. Unfortunately I think the path to creating a more effective confirmation process is neither easy nor can it be changed effectively in a radical manner. Responsible journalism, educated journalists and at least acknowledging and incorporating narrative B into a narrative-A centric process are all key ingredients from the press’s side in a more effective confirmation process. From the nominees’ side, greater honesty and candor tempered with an awareness of the politics of the situation would give the American public a better understanding of the important justices and the issues that will shape their highest court. And as some of the commentary from senators involved in Kagan’s slightly more open hearings suggests, perhaps if there was that additional touch of honesty and candor versus evasive and hollow answers from justices the tone of these hearings can begin to shift to involve some mutual respect versus a chance for the people that the hearings are not about to turn them into a political message to impart upon the watching public.
PERSPECTIVE OF A FORMER TEACHER (Karli Swift)
PERSPECTIVE OF A FORMER TEACHER (Karli Swift)
Under the backdrop of politics, the twenty-four hour news cycle, and the mystique of the Supreme Court rages a battle royale. This battle is frequent enough to garner wide spread public attention when it occurs, yet so infrequent that the public rarely questions how the confirmation battle impacts the Justices themselves or society’s view of the Supreme Court.
What I am alluding to is the Supreme Court confirmation process. Each time a spot opens on the Supreme Court the battle between the President, Congress, and public opinion begins. But how has the media, the twenty-four hour news cycle, and society’s veracious appetite for information changed the process? Has it become more combative and less useful for fostering substantial public debate? Or does it rehash age old political divides on divisive issues that settle along political party lines?
What is the answer to the pressing question - has television coverage of the confirmation hearings harmed the confirmation process? I think the answer is yes, it has.
The confirmation battle has two clear opponents – a sitting president and Congress. The object of the battle – to appoint a new judge – seems to be clear. However, the increasing tension fed in large part by the media’s constant focus on the candidate’s personal beliefs, rather than their judicial capacity reduces the process to nothing more than a stylized campaign, where the nominee is nothing more than an object to be molded by the President’s Supreme Court nomination team and to be dissected and berated by members of Congress. Media coverage gives Congress the opportunity to air their political positions and smear the good names of candidates.
Now I don’t want to discount the importance of the political rigor of the confirmation process. In fact, as a political junkie myself, I find it very interesting. However, does forcing the nominee to sit through a political fight between the parties do anything to help society get a better idea of where the candidate stands on issues? How many people actually watch the entire confirmation hearings? Not many. As a result, what the public learns about the nominee is based on sound bites from either the nightly news or a slanted cable news program. Whether it’s MSNBC or Fox news, the slant creates a sense of the candidate that might not be warranted.
Take the Elena Kagen confirmation hearings, for example. Kagan, the former Dean of the Harvard Law School, noted administrative law scholar, and former U.S. Solicitor started her hearing with a story about her life. She answered eloquently every question directed at her. What did we learn about her or how she might rule? Nothing.
So what was the point? Clearly the confirmation hearings have little to do with the candidate. Justice Roberts left the confirmation hearing as a umpire. Justice Sotomayor was a wise Latina. But the public never got any idea of what kind of Justice either of them would be on the Court.
Is it the media’s job to inform the public about the process, how a potential candidate might rule, or the political tension surrounding the nomination? Are sound bites a reasonable method of informing the public? Or does media coverage of the confirmation hearings render them useless? Would candidates be more honest and forthcoming about their positions if they thought that what they had to say wouldn’t be televised or distorted?
Ultimately, I think that the public has a right to know who their next Supreme Court Justice is and a glance into how they might rule on the Court. However, the current system does little to support this outcome.
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