On Monday, the Senate Judiciary Committee will begin confirmation hearings for U.S. Solicitor General Elena Kagan, President Barack Obama's second Supreme Court nominee.
Sen. Patrick Leahy, D-Vt., the committee chair, scheduled the hearings promptly after her nomination so she could expeditiously respond to questions about her perspectives and to criticism of her jurisprudence. Now the Judiciary Committee's 19 members must use this opportunity to learn as much as possible about Kagan so the Senate can discharge its constitutional responsibility to provide advice and consent on Obama's nominee.
Since 1987, however, the confirmation process has grown increasingly partisan and contentious, plagued by accusations and recriminations, political infighting and paybacks. These factors are acute because the Supreme Court is the nation's highest tribunal for resolving disputes about life, liberty and property, and has only nine members, who are appointed for life.
Confirmation hearings are the fulcrum of the process. The senators pepper nominees with a spectrum of questions in proceedings that are broadcast live to millions. This setting presents enormous temptations to play to the grandstand and to play "gotcha" with nominees who are under intense pressure to answer difficult questions accurately.
Some astute observers, including Kagan and Vice President Joe Biden, have questioned whether these proceedings are even helpful. Indeed, before the 1930s, no Supreme Court nominee testified at his confirmation hearing.
Regardless of the hearings' efficacy, they've become permanent fixtures, and all Supreme Court nominees must run the gauntlet. Nonetheless, there's much that senators could do to improve the value of the process and enhance the quality of the information that the Senate and the public derive from the proceedings.
Of course, senators may ask whatever they want, and nominees are free to decline to answer queries that they deem improper. Senators have a solemn duty to ascertain that nominees possess the requisite intelligence, experience, independence, diligence, character and judicial temperament to be excellent justices. They can probe these attributes broadly, and they should question nominees rigorously, but fairly.
Senators may ask nominees about their judicial philosophies, jurisprudence, ideological perspectives and even specific areas of the law or particular cases. However, Senate members should be realistic about how directly nominees can answer certain questions. The more questions relate to issues that nominees, if confirmed, might resolve, the less likely it is that nominees will answer them. This is because nominees must decide cases based on the law and the facts, and might have to recuse themselves if they prejudged issues during their confirmation hearings.
It isn't clear why, aside from political grandstanding, senators ask questions that would force nominees to recuse themselves later, and when they persist, nominees should respectfully decline to answer, as Chief Justice John Roberts and Justices Samuel Alito and Sonia Sotomayor often did in their hearings. If nominees refuse to answer so many questions that senators think they can't ascertain a nominee's qualifications, then the senators may vote no.
When Kagan's confirmation hearings begin, senators should ask questions that probe her qualifications for service on the Supreme Court. She should answer these questions as fully and carefully as possible - but politely refuse to answer any that might force her to recuse herself if the Senate confirms her.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond School of Law. He wrote this for McClatchy Newspapers.