Washington and Lee University
The Senate Judiciary Committee hearing on the nomination of Judge Sonia Sotomayor to the Supreme Court illustrates how the hearing process has become a meaningless political exercise, says Washington and Lee University politics professor Mark Rush.
Rush, the Robert G. Brown Professor of Politics and Law, says that the principal qualification emerging from the hearings is whether or not the nominee can suffer through “what has now become a rite of passage before the Senate.”
“Through this year and others in the recent past, we really are not finding out anything of substance about what the nominees really think,” said Rush. “That’s quite rational on the nominee’s part, of course. As we saw with the (Robert) Bork hearings (in 1987) and later to a degree with the Justice Clarence Thomas hearings, was that if a judge takes a particularly well-defined or strong position on a controversial area of law, it simply gives the opposition ammunition.”
Consequently, Rush says that Judge Sotomayor, who has had the reputation of being animated, has been almost boring in her responses to the senators’ questions.
Rush points to the controversial Bork hearings as the real turning point in the current process. Although there had been other examples of controversies in the hearings, none was acrimonious as Bork’s, said Rush.
“He seemed to approach the hearings much more as a debate and not as a situation where he needed to play a game to get on the Supreme Court,” Rush said. “I think that was the key turning point in the nomination process. When you look back to the nominations of Earl Warren or Felix Frankfurter, none of them had to endure this. The appointment process used to be quick.”
Rush describes the process as a political football that provides senators with cost-free campaigning.
“On one hand, I certainly could see them getting rid of the hearing, because while the president appoints nominees with the advice and consent of the Senate, there is no constitutional requirement that we hold public hearings such as this,” Rush said. “But I think that until there is a reason, until an outcry goes up asking why senators are wasting time and dollars on this grandstanding exercise, I don’t see a change. It allows them to campaign from the Senate chamber, and it’s free.”
