Let Professionals Run Hearings
IN all their pontificating about reforming the process for nominating and confirming Supreme Court justices, the men in the White House and on the Senate Judiciary Committee still don't get it. Let's change the cast of people in charge.All the senators boast that that they are committed to diversity and fairness. After all, they have blacks and women working for them. Taking them at their word, I propose that the senators and staff switch roles when asked to give advice and consent on judicial nominees. The results: * The process would be slowed down; the stampede to judgment would be converted into a prudent, careful exploration of the nominee's views, background, relevant experience, and character. Unauthorized leaks would be minimized since relevant information would be pursued in the normal course. * The critical role of civil rights and public interest groups in the democratic process would be welcomed, not challenged. Staff, with whom they already enjoy a working relationship, would treat them as sources of information to be corroborated, not terrorist guerrillas to be silenced. * The confirmation proceeding would be pursued using the tools of the adversary system. The burden of proof would be on the White House to prove the nominee's qualifications by clear and convincing evidence; the rules of evidence, in modified form, would be followed consistently, not just depending on who was speaking; the staleness or magnitude of charges against the nominee would be relevant to assessing their weight but would not justify, as some now assert, the nominee's right to commit perjury to av oid "disproportionate punishment;" counsel, not politicians, would ask the questions and summon witnesses. As serious lawyers, staff would attempt to educate the American public as jury and the senators as judges about the nature of the allegations and their context. This would be done by careful questioning and examination of the actual evidence presented at the hearing. Senators would act as careful, empathetic listeners. Instead, because politicians and not their staffs were in charge of the Thomas hearings, the process failed. It was abused by a homogeneous racial and gender majority that failed to represent, through basic and traditional protections in the adversary process, the interests of disadvantaged minority people. It was the rush to judgment and the absence of a true adversary process that left many with grave doubts about the character and behavior of a sitting federal judge and the fairness of the process tha t nominated and confirmed him to the Supreme Court. And the confirmation of a Supreme Court justice became the show-trial of the decade.