Kennedy Decries Confirmation Process

In a powerful op-ed in Sunday's Washington Post, Senator Ted Kennedy (D-MA) contrasted the failure of Chief Justice Roberts and Justice Alito to divulge their judicial philosophies during the nomination process with their willingness "to tilt the court away from the mainstream" upon ascending to the bench. Senator Kennedy pointed out that while Roberts and Alito both pledged to "not bring an ideological agenda to the bench," in case after case both took the far-right position, frequently siding with ultra-conservative Justice Thomas. Senator Kennedy urged that, in the future, the Judiciary Committee “require that nominees share [their] thinking [on legal issues] with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases.”

Yesterday, the Post also ran a companion column by Benjamin Wittes, in which he argued that the Senate should eliminate public nomination hearings entirely. Wittes viewed such hearings as nothing but "failed experiment[s]," saying “[l]ive nominee testimony has become a meaningless Kabuki dance” where nominees give predictably noncommittal answers to questioners from the other party who hope “to wring concessions from would-be jurists or to tar them as unworthy.” The key moment in confirmation fights, according to Wittes “is the point at which the people's representatives debate the nominee's record and cast their votes,” and not the hearing.