The Senate Judiciary Committee hearing on the nomination of John Roberts to serve as Chief Justice of the U.S. Supreme Court began with an appropriate message from Wisconsin Senator Russ Feingold.
A maverick within his own Democratic party and the Senate as a whole, Feingold called upon the committee, the full Senate and all of official Washington -- a city that frequently is more concerned about images than Constitutional duties -- to get serious about the monumental task that lies ahead.
"Some have called for a 'dignified process,'" Feingold said of the confirmation process. "So have I. But at times it sounds like what some really want for the nominee is an easy process. That is not what the Constitution or the traditions of the Senate call for. If by "dignified" they mean that tough and probing questions are out of bounds, I must strongly disagree. It is not undignified to ask questions that press the nominee for his views on the important areas of the law that the Supreme Court confronts. It is not undignified to review and explore the nominee's writings, his past statements, the briefs he has filed, the memos he has written. It is not undignified to ask the nominee questions he would rather not answer should he prefer to remain inscrutable, or, worse yet, all things to all people."
Feingold continued, "This process is not a game. It is not a political contest. It is one of the most important things that the Senate does – confirm or reject nominees to the highest court in the land. And we as Senators must take that responsibility very seriously."
The unfortunate reality is that Roberts is unlikely to face an appropriate level of scrutiny. That's because, in many senses, the process is a game. Most members of the Judiciary Committee wear their responsibilities lightly. They want to appeal to the interest groups that they need to advance their political ambitions, so they will ask some tough questions. But they do not want to appear so "ideological" or "passionate" that the greater mass of voters in their home states might be offended, so they will not push as aggressively -- or vote as courageously -- as they should.
This political calculus has played out for a number of years. For the most part, nominees for lifetime sinecures on the highest and most definitional court in the land are given a free pass. That was certainly the case the last time that the Senate weighed a Supreme Court nomination.
In 1994, a less-than-appealing nominee of then President Bill Clinton, Stephen Breyer, swept through the confirmation process and was approved by an overwhelming Senate vote of 87-9.
Breyer, whose record as a U.S. Circuit Court of Appeals judge displayed an overwhelming bias in favor of corporate interests over those of consumers and workers, should have had a hard time getting on the court. He didn't. Though consumer activists warned that Breyer's confirmation would move the court in "an anticonsumer, antiworker, antienvironmental" direction, only one senator, Ohio's Howard Metzenbaum, challenged Breyer on his pro-corporate proclivities. In the end, even Metzenbaum (and, it should be noted, Feingold) voted for the nominee. Only a handful of conservative Republicans, who were mainly interested in poking at Clinton, rejected Breyer.
That was not as it should have been.
In its failure to scrutinize and effectively challenge Breyer's biases, the Senate let the country down.
Breyer certainly enjoyed a "dignified" confirmation process. But that dignity came as the expense of the Senate's Constitutional mandate to provide not merely "advice and consent" but to serve as a check and a balance upon the executive and his nominees.
Now, for the first time since Breyer was approved more than a decade ago, the Senate is called upon to accept or reject a new nominee to the high court. Again, the nominee has a record of extreme pro-corporate bias -- a record that has received scant notice as the debate over Roberts, such as it is, has tended to focus on so-called "hot-button" issues, such as reproductive rights.
Feingold set the proper standard when he suggested that Roberts must be subjected to the sort of broad, unapologetic scrutiny that Breyer so unfortunately avoided.
"It goes without saying that the Supreme Court is one of the most important institutions in our constitutional system and that the position of Chief Justice of the United States is one of the most important positions in our government," the Wisconsin senator explained. "The impact of this nominee on our country, should he be confirmed, will be enormous. That means our scrutiny of this nominee must be intense and thorough. In my view, we must evaluate not only his qualifications, but also his ability to keep an open mind, his sensitivity to the concerns of all Americans and their right to equal protection under the laws; not only his intellectual capacity, but his judgment and wisdom; not only his achievements, but his fairness, and his courage to stand up to the other branches of government when they infringe on the rights and liberties of our citizens."
This confirmation process will be a test for Roberts. But it will also test the Senate. Hopefully, the chamber's members -- including Feingold, himself -- will challenge John Roberts as aggressively as they should have Stephen Breyer.