Some of us have long complained that confirmation hearings have become a rather bad joke (here) — carefully choreographed events devoid of substance. While many of us thought it could not positively become more content-free, it has. The director of the William J. Clinton Presidential Library and Museum has announced that the library cannot possibly turn over the prior writings of nominee Elena Kagan from her prior government service in time for the June 28, 2010 hearings. Rather than move the date, the Senate Judiciary Committee and White House appear intent on holding a hearing without the burden of knowledge of Kagan’s prior writings. Given her wafer-thin record of writing as an academic, that will guarantee a confirmation hearing that makes Dancing With the Stars looks like a tenure review meeting.
There is obviously a considerable conflict of interest in this process. The slower the review process, the less material can be disclosed. Both President Clinton and President Obama have a right to review the material before it is released. I have long been a critic of the Presidential Records Act and the control that former presidents exercise over their papers. For a prior column, click here. For prior testimony, click here. For a prior law review article, see Jonathan Turley, Presidential Records and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Control and Ownership of Presidential Records, 88 Cornell Law Review 651-732 (2003).
Despite months of prior indications of Stevens’ retirement, the White House waited until this month to nominate Kagan and then insisted on a hearing date before the August recess. There is certainly a value to having a full court in place for the next session but that schedule left little time for review — and inevitably produced an administrative barrier for the release of information. This controversy could be the final proof that confirmation hearings have little to do with the merits or record of a nominee. Such material is now being dismissed as only marginally important to confirming an individual for a lifetime appointment on a court of nine.
The library has suggested sending Clinton and Obama lawyers to the library to pick out documents that they do not want released. In the meantime, Judiciary Committee chairman Sen. Patrick J. Leahy (D-Vt.) insisted that regardless of the withholding of such records, the June 28th date will not be postponed.
Henri Queuille stated that “politics is the art of postponing decisions until they are no longer relevant.” It appears that politics is also the art of rushing decisions so they are no longer recognizable. It is almost Zen-like in character: if a record is reviewed in a forest (or a presidential library) and no Senators are around to see it, is the nominee reviewed? I do not expect Senators to spend much time in the lotus position contemplating that question. It would be refreshing for Senators, however, to simply admit that they have little real interest in such records. Ironically, liberal groups have been clamoring for more review of issues like abortion, here. However, Democratic Senators would prefer to simply ask her about her views than have to address specific and divisive memos. She can then give a pre-written answer and invoke the Ginsburg rule to cut off further discussion.
We now have Lite Beer, skim milk, and sugarless gum. Why not have contentless confirmations — politically satisfying with no unsightly bulges or caloric intake?
For the full story, click here.