Fools rush in where wise men fear to tread, so I make bold to disagree with Stuart Taylor, superstar commentator on all things law-related, about the recurring charade of our Supreme Court nomination hearings. Taylor says here that Elana Kagan should follow the dreary precedent set by the last several Sup noms, saying absolutely nothing that might reveal that any important idea ever dwelt between her ears.
I disagree. If I were ruling the world and the Sup nom process, I’d do two things:
1. Set up a list of 20 or so questions designed to elicit the nominee’s thinking about the great issues of our time. And of course none of them would require her/him to pre-judge a possible case. It would be easy to avoid that problem. Duh.
I would give the nominee a pass on any five of the questions she chose, sort of like the peremptory strikes attorneys get when picking juries. But she would have to answer the other 15 to the satisfaction of a majority of the committee.
2. And if she refused? I would respectfully say, “Then let’s try again tomorrow,” and gavel the proceedings to a close. We’d pick it up the next day, or the next, or the next, for however many days the nom chose to remain evasive. Eventually, those with some interest in filling the seat might get together and figure out some appropriate and substantial responses.
Why do this? Because I think there is something flat wrong about how the process works or does not today. Something smells when a potential judge, a person who wants to spend the next several decades discerning truth from falsehood, embarks on that career in a cloud of falsehoods, evasions, and half-truths. It’s as if a minister won his post by blackmailing the board of deacons.