THE White House has become the master of the game. The Senate is still learning the ground rules.Call it the politics of confirmation. "This has been high-stakes politics," Michael Gerhardt, professor of constitutional law at the College of William and Mary, says of the confirmation hearings of Supreme Court nominee Clarence Thomas and director of Central Intelligence nominee Robert Gates. "The administration has learned how to win the game."
Future of the process Out of hearings marked by reticence and frustration, in which senators learned more about Judge Thomas's grandfather than about his views on abortion, in which Mr. Gates's self-admitted fallibility eclipsed questions about his role in the Iran-contra scandal, the questions arising have less to do with the fates of the nominees than the future of the confirmation process. "We've reached a confirmation spectacle with dangerous implications for the future of the intellectual capacity of the Supreme Court," says former Justice Department lawyer Bruce Fein. "Nominees are put in a corrupting position where they must smooth their answers to suit the political imposition" of the Senate Committee. Equally dissatisfied with the hearings process from the other side is Sen. Joseph R. Biden, chairman of the Senate Judiciary Committee. Venting his frustrations with Thomas's evasive answers, the Delaware Democrat promised to hold hearings on the confirmation process following the committee's vote. Thomas could be approved by the committee as early as Friday, and is expected to win confirmation in the full Senate. There ought to be inherent differences in the confirmation processes for a judiciary nomination and an executive nomination, according to Mr. Fein. "The judiciary is not beholden to the Senate, and the Senate shouldn't be as hard on nominees to the executive branch as to the Judicial branch," he says. But in the recent testimonies of Gates and Thomas, there appeared a similar strategy: be elusive about contentious issues like abortion and Iran-contra, stress humility, and disclaim the past. "I have a feeling you're going to find a similarity between the two hearings," Sen. Howard Metzenbaum told the Monitor. The Ohio Democrat serves on both the Judiciary and Intelligence Committees. "Thomas said a lot, but it didn't mean anything. It was just conversation. Gates said, 'I was there, but I don't know anything about it.' The two candidates are presenting themselves as people who come before the committee as blank walls."
Started with Bork Such is a strategy born out of fierce partisan politics. In 1987, federal court Judge Robert Bork sat before the Senate Judiciary Committee at a turning point for the Supreme Court: Democrats had taken control of the Senate; the confirmations of Justices Sandra Day O'Conner and Antonin Scalia, and William Rehnquist as Chief Justice, meant that Bork's confirmation would secure a conservative majority. In a highly political confrontation over abortion, the Bork nomination was rejected. But the episode changed the nature of confirmation proceedings. "Bork was offered by Reagan as a way of charging the right wing and [forcing] debate in the Senate," says Robert Katzmann, visiting fellow at Brookings Institution and president of the Governance Institute. "Now, the strategy is to show the candidate is open-minded and has a diffuse ideology." Beyond the candidate, the Bork experience taught the need for a support staff. "People nominating have to be PR minded," says Tom Korologos, a Republican strategist who helped the Bork nomination. "They have to have press office people at hearings, and have to hold press conferences on the spot to put out the fires. What you have is a political campaign." "What is learned from experience, from people and politics, was clearly a factor in the Bork nomination," says Mr. Gerhardt. While the Bork confrontation has influenced the way the Senate and administration approach the nomination process, politics is nothing new to confirmation hearings. William Eskridge, an expert on the history of the confirmation process at Georgetown University Law Center, says the relationship between the Senate and White House has always been strained over nominations. "The history of the Senate confirmation process is a rocky one. Approximately one-fourth of all nominees have been rejected or postponed until they were withdrawn," he says. "The process is substantially political; it has little to do with the nominee. In the 19th century the Senate rejected a nominee on the basis of its relationship with the President."
Gaining back balance How future Supreme Court confirmation hearings are conducted depends on how the Senate approaches certain questions: How can the Democrats gain back the balance of authority between the legislature and the executive branch in the selection of Supreme Court nominees? What is the most appropriate and effective way to obtain a nominee's views on precedent, judicial philosophy, and issues that may appear before the court during the candidate's tenure? Gerhardt says it is a question of resolve. "This is the longest point in history that the opposing party can't put someone on the court, as Dean Calabresi [Yale law school] pointed out in the hearings. Both Reagan and Bush have chosen nominees of one ideology. The presidential power is hard to oppose. The Senate would have a big risk in taking a stand, but unless the Senate does this, we'll see the same trend," he says. Mr. Eskridge urges the Senate to play the administration's game. "The Democrats could view the confirmation process as openly political. The president uses politics, why can't the Senate make overtly political moves too? The Senate played too long with Thomas, and did not play up enough the views of the African-American community," he says.