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.