President Obama’s nomination of Solicitor General Elena Kagan for the Supreme Court formally starts one of our most flawed constitutional traditions: the Senate confirmation hearings. It is enough to make the Framers blush, a process once described by Kagan herself as a ” vapid and hollow charade.” From movies to baseball, other fields select top candidates based on proven and unequalled performance. For court nominees, we often seek not the most valuable player but the most confirmable person.
The sad fact is that there is more demonstrated ability and evaluation in American Idol than these Senate hearings. The Constitution is silent on the standard for confirmation, and most senators view their job as confirming individual competence rather than comparative excellence. Under the Ginsburg rule (named after Justice Ruth Bader Ginsburg), nominees are also allowed to refuse to answer many questions on their specific legal views. As a result, what legal discussion that is generated is often little more than platitudes and generalities — like picking a doctor based solely on his stated commitment to “good health” and his strong opposition to premature death.
Other professions struggle to find the best person through a process of comparison — as opposed to high court confirmations where a single nominee is judged against herself.
•The College of Cardinals. Any unmarried Catholic male can be chosen as pontiff, though since Pope Urban VI in 1378, all popes have been selected from the ranks of cardinals. This means that the process compares more than 100 eligible candidates. When each cardinal casts his secret vote, he gives a Latin oath stating, “I call as my witness Christ the Lord who will be my judge, that my vote is given to the one who before God I think should be elected.” In confirmation hearings, the choice is only the president’s, with nominees often selected for political rather than intellectual viability.
•Baseball’s MVP. The most valuable player in Major League Baseball is awarded by the Baseball Writers Association of America, the people who observe the performance of players over a lengthy season before selecting the best candidate. Conversely, senators never inquire as to whether a jurist is really the best choice among jurists, professors and lawyers who are widely cited as the intellectual leaders of their generation. We effectively select our judicial MVPs based on how good they look on a baseball card as opposed to their actual stats. If law professors and legal commentators selected nominees as sports writers select MVPs, few if any of the past dozen nominees would have made the final list — let alone the final choice.
•The Academy Awards. Of course, one could make selections of nominees based on the quality of their writings. When the Academy Awards are selected, the decision of who is the best actor or director is made by the roughly 6,000 members of the Academy of Motion Picture Arts and Sciences. While Academy voters compare the specific body of work of a candidate with other artists, senators avoid such comparisons and seem to prefer nominees with little prior writing (such as law review articles). It is like the Academy voting on the best movies based on trailers.
If we really wanted to select a judicial MVP, we would start by making comparisons between candidates, selecting from the clear leaders in the legal field, and demanding to see outstanding contributions to law as a prerequisite for confirmation. We would also discard the Ginsburg rule. If they state (as did nominee Clarence Thomas) that they just haven’t thought much about issues such as Roe v. Wade, they should be told to come back once they have. As Kagan once said, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”
In Kagan’s case, she appeared to endorse controversial views from the Bush administration in limiting civil liberties in the war on terror — views diametrically opposed to some of the most important decisions of the man she hopes to replace, Justice John Paul Stevens.
We were once able to put the likes of Louis Brandeis, Oliver Wendell Holmes and Joseph Story on the court. We now have a process that favors hope over experience with the advantage going to those nominees with the least writing and slimmest record.
No one is asking for white smoke to appear over the Capitol Dome to show a divinely selected nominee. But there is a serious problem when we take greater care in selecting our movies and MVPs than our justices.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
USA Today: May 12, 2010