By John F. Di Leo -
Every time the Executive Branch nominates someone to the Supreme Court, the U.S. Senate schedules public hearings, in which they interrogate the nominee.
Senators ask the nominee what they think the Constitution means, what they think enumerated and non-enumerated rights are, when life begins. Senators of the party that controls the White House throw softballs; senators of the opposition party ask tough questions.
This should be the opportunity for viewers at home to learn whether the nominee is a conservative or liberal – a true believer in our Founding Principles of limited government, or an advocate of the “living document” theory – someone who will honor his oath to uphold the Constitution, or someone who will utilize his newfound power to throttle it.
It should be such an opportunity… but it’s not. In fact, we don’t learn any of this from the nominee when he or she is on the stand. We learn next to nothing.
It’s not our fault. It’s not that we aren’t listening hard enough; there’s no secret code that reveals itself only to those with the decoder ring.
The problem is that there are loopholes built right into the process.
- If a question is anything like a case that the Court will – or might – face soon, the nominee doesn’t have to answer.
- If the question is about something the Court has faced in the past, the nominee can say that precedent is, after all, settled law.
- And if the question is about something that might come up in the future, but there’s no specific case to cite today, the nominee can say it doesn’t make sense to address a hypothetical.
These dodges are all built into the system, rooted in the Code of Judicial Ethics and generations of precedent. (Oh yes, precedent in Senate hearings appears to be just as powerful a blockade as precedent is in case law, perhaps even more so). Senators of both parties respect the concept, and allow the nominee dodge after dodge, almost making a little private game out of it as they try different ways of wording the question, different ways of pressing the point, in the hope of somehow getting some nugget of information, some admission of a personal belief, something that will make the day anything but the utter waste we all know it is.
We all learned more real facts about the nominee from our own research, in the first 24 hours after the nomination, than we’ll ever learn from days of this pretend “testimony.”
The whole process is really an opportunity to humanize the person beneath the black robe. A chance to see him or her smile and look likeable, or furrow the brows and look serious, or use big words and look intelligent.
But does that perversion of the process really help our country at all? If that’s all we get out of these hearings, it’s not exactly a good use of our tax dollars, is it? Gentle Reader, speaking just for myself, I must confess: I don’t care a whit whether I like an associate justice or not.
Americans should care about how a justice will vote, and whether that justice will write opinions of which the Framers would be proud. We shouldn’t care whether these nine robes are jovial or serious, cordial or ornery, young or old, male or female, black or white, old or young, attractive or homely.
Supreme Court justices must be judged on their written opinions, their votes, and their level of respect for their oath to support and defend the Constitution. That’s all that matters.
These in-person interviews, therefore, hurt the process more than they help it. They humanize nominees who, frankly, should not be thought of for their personality, their charm, their wit.
We should have learned our lesson after the nomination of Robert Bork, 35 years ago, when hostile Senators so abused the process – and their own senatorial privilege – that they turned a brilliant jurist’s name into a verb. We should have stopped holding these sham interviews that very day.
The Constitution requires advice and consent from the Senate. There is no requirement that the nominee show up in person before their vote.
Even if we hadn’t built these idiotic “Get Out of the Question Free” cards into the process, most intelligent nominees can figure out ways around tough questions anyway. These are lawyers, after all, many of whom parse phrases and twist words for a living (no offense intended, Gentle Reader, if you happen to be a trial lawyer yourself).
And they can lie.
Yes, of course they can. What’s going to stop them?
Does anyone seriously think that a Congress that wouldn’t impeach anyone in the Obama or Biden regimes for blatant, unprecedented corruption is ever going to impeach a sitting Associate Justice for having lied to the Senate when answering a question about the meaning of the Tenth Amendment or giving their interpretation of the Commerce Clause during a confirmation hearing?
The solution – the only solution – is to keep these nominees out of the room… but keep the cameras on, and have a clerk read the nominees’ past writings into the record, and watch the Senators directly analyze and debate these issues before they vote on the nomination.
Ketanji Brown Jackson, a daughter of a school district lawyer and a school principal, somehow got into Harvard University, one of the most prestigious schools on earth, for both undergrad and law school. How? How did she get in? What were her SATs and LSATs? Who pulled what strings to get her admitted, and how might this elitist, privileged background affect her judgment on a Court that needs to represent every sovereign American citizen, not just her fellow Ivy League elites?
Ketanji Brown Jackson has written – and spoken out loud – some shocking statements over the years, and they are in the public record. As a judge, she has issued opinions in which she exhibits more compassion for criminals than for their victims, again and again. She has drawn notice throughout her career for repeatedly feeling sorry for convicted drug dealers, convicted child porn traffickers, and their families and friends… yes, while these convicts’ victims were in the room, earning much less compassion from the judge than their abusers got.
Is it enough to address such issues with a single question in person, allowing the nominee to weasel out of it, or shouldn’t we have the time to really dig into this issue to get a proper picture of her zeitgeist, to take the time to publicly study some of her actual rulings and read the transcripts of what she said from the bench? Those records are truth.
They are hard facts, and no amount of smiling at the camera and parsing the questions will be able to sugarcoat her weird tenderness for the criminal element.
Ketanji Brown Jackson wrote a senior thesis entitled “The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants,” and went on to be a public defender, winning compliments (from one side of the aisle) for frequently overturning the sentences of convicted criminals, getting prison time reduced or even eliminated – not for the innocent, but for the guilty.
She served as vice chair of the U.S. Sentencing Commission, a post that gave her the opportunity to rewrite federal sentencing guidelines, to cut back the time in jail of convicted criminals across the board, so that convicted criminals can always be returned to the streets to commit crimes again, as soon as possible.
Why? Why this lifelong vendetta against punishment of the guilty? This isn’t about preventing wrongful convictions of the innocent… a cause which all good Americans can support.
Oh no. Hers is a new cause, in the eyes of the American people: preventing our criminal justice system from doing its job, in removing convicted criminals from society – preventing our government from its fundamental duty of protecting law-abiding citizens from proven lawbreakers. This is new, and the American people deserve to know that this philosophy is the animating viewpoint of this particular nominee – a viewpoint that all normal people would consider antithetical to the position she seeks.
America needs the chance to absorb this, and make a decision: Does such a philosophy as hers, such a worldview, belong on the Supreme Court at all?
We must remember, this isn’t one out of 435 congressmen, up for election every other year, or even one out of 100 senators, who could be tossed out every six. This is one of only nine justices on the Supreme Court, who, if confirmed at her age, will likely hold onto this powerful seat for thirty years.
Shouldn’t the question of whether or not this sacred trust should be handed to a person like her, one whose life goal has been to set criminals loose as quickly as possible, be a matter for intense scrutiny?
The current process is not designed for appointees like this one. It is high time we changed the process, so that we can analyze the facts that matter, without being dazzled by institutional evasions and lawyerly spin.
Copyright 2022 John F. Di Leo
John F. Di Leo is a Chicagoland-based trade compliance trainer and transportation manager, writer and actor. A one-time county chairman of the Milwaukee County Republican Party, he has been writing regularly for Illinois Review since 2009.
A collection of John’s Illinois Review articles about vote fraud, The Tales of Little Pavel, and his 2021 political satires about current events, Evening Soup with Basement Joe, Volumes One and Two, are available, in either paperback or eBook, only on Amazon.
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