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Stop this donkey-&-elephant show
Colin McNickle is the Trib's director of editorial pages. Ring him at 412-320-7836. E-mail him at: cmcnickle@tribweb.com.
But, and as unwittingly is the case sometimes with liberals, the senior Democrat U.S. senator of Delaware is right for exactly the wrong reason.
On NBC's "Today" show Thursday, Mr. Biden, a longtime member of the Senate Judiciary Committee, said Supreme Court nominations should go straight to the Senate floor.
"The system's kind of broken. Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues.
"Just go to the Senate floor and debate the nominee's statements, instead of this game," Biden said.
Let's do it, by golly. The Framers would be pleased. But sorry, Senator, the committee confirmation process isn't broken because of the nominees. It's broken because of gents like, well, Joe Biden and Teddy Kennedy.
To wit, for Sam Alito's confirmation hearings last week, Biden borrowed "super-duper" from Arlen Specter (as in "super-duper precedent") and applied it to the size of his soap box to offer a 20-minute long "question." It's otherwise known as grandstanding in pursuit of national TV face time.
Rest assured, some of the more animated clips will make the cut for those "Biden 2008" presidential campaign commercials. Come to think of it, and given Judge Alito's performance, there might not be much to work with. No wonder Biden wants to kill committee hearings.
Kennedy huffed and puffed and reduced himself to wheezing when he couldn't blow Alito's house down. So he grabbed some straws in the martini cloakroom and resorted to the worst kind of smear imaginable over Alito's "troubling" affiliation with that horrid -- HORRID! -- Princeton alumni club. Mr. Kennedy brought Alito's wife to tears.
You're a big man, Teddy, in more ways than one. How was that swim?
But I digress, drowned for a moment by the fat opportunity to fire a cheap shot at the Senate's most prolific (if not profligate) make-a-woman-cry cheap shooter.
There's no constitutional requirement for the Judiciary Committee to vet high court nominees, only the generic "advice and consent." Heck, the Constitution does not even require federal judges to be lawyers. Though one of the Senate's original 11 standing committees, Judiciary wasn't established until 1816. And it wasn't until 1868 that a Senate rule required all nominations be referred to it for review.
Actually having the nominee testifying before the panel was not considered a requirement. "For the nation's first 140 years, the nominees were rarely invited to appear before the Senate," write Kermit L. Hall and Mitchell S. Ritchie in "The Oxford Companion to the Supreme Court of the United States." If they were invited, "the nominees declined out of a sense of decorum."
Decorum, we all should be reminded, that few Senate Judiciary Committee liberals seldom have shown.
The first Supreme Court nominee to submit himself to the Judiciary Committee was Attorney General Harlan Stone, a Calvin Coolidge appointee in 1925. He had won the committee's endorsement without first appearing. But Sen. Burton K. Wheeler, D-Mont., whom Stone was investigating and wanted to appear before a grand jury, convinced an ally to have the Senate resubmit the nomination to force Stone to answer questions about the probe. Wheeler thought someone had lied to Stone.
Stone easily won approval yet again. Thus, the first Supreme Court nominee testimony had virtually nothing to do with the high court but everything do with politics. Imagine that.
It would be 14 years, 1939, before another nominee, Felix Frankfurter, a Roosevelt pick, sat before the committee. Again, it wasn't about his judicial philosophy but to defend himself against those attempting to smear him for his foreign birth and his religion.
It wasn't until 16 years later -- in 1955 with Eisenhower's John Harlan nomination -- that appearances before the committee became standard practice.
And, of course, there were the 1987 hearings for Robert Bork, whose honesty and intellect were his own worst enemies, at least in the minds of committee members who couldn't handle the verity that the Constitution means what it says and doesn't say what it doesn't say.
Then there were the Clarence Thomas hearings of 1991, in which a tried-and-true philosophy of conservative judicial reasoning could not be impeached, but which Democrats tried to trump with an unfounded allegation of sexual harassment.
So, by all means, let's stop this inane donkey-and-elephant show that demeans decent people, makes women cry and raises the profiles of pompous inquisitors pimping for People for the American Liberal Way and Americans for the Caning of Heathen Methodists.
Back in 2001, and largely lost in the aftermath of the Sept. 11 attacks that year, University of Illinois law professor Ronald D. Rotunda submitted a white paper to the subcommittee that has administrative oversight of the Judiciary Committee, reviewing the Senate's role in judicial nominations.
While he appears to support the premise of nominees appearing before the committee, Professor Rotunda offers this simple judicial golden rule:
"(N)ominees should only promise the faithful performance of their judicial duties. ... Nominees should not be judged or punished because of the clients that they have represented."
These simple and basic ends can be achieved quite sufficiently with a concise written statement from the nominee, a thorough background check by the Judiciary Committee and a robust debate on the Senate floor before an up or down vote.
The country, the people and the process will be better off for it. Here's hoping Sen. Biden follows through with a motion to formally change the rules and has plenty of co-sponsors to make it happen. Advice and consent requires no more; it should be honored no less.
