They have serious flaws, many of which are on display this week. But we are still better off with them than without them.
While there is deep disagreement about the merits of Amy Coney Barrett’s nomination, commentators across the political spectrum seem united in decrying the confirmation hearings as ridiculous, a « circus, » or even « verging on the absurd. » Like many other observers, I thought a lot of what was said in the hearings was lame. Senators from both parties engaged in worthless grandstanding, and many of the nominee’s answers were evasive, at best. The same, I think, was often true of other recent SCOTUS nominees. And there was no shortage of dumb questions (such as this one by Sen. Lindsey Graham), and even ridiculous conspiracy-mongering. My George Mason University colleague Adam White has a thoughtful Washington Post op ed outlining what confirmation hearings can potentially achieve. But even he likely realizes that the sordid reality is far from that ideal. But, even if they remain largely as they are, the hearings serve useful purposes, despite their severe flaws. Requiring the nominee to run this gauntlet deters the nomination of cronies and hacks who aren’t knowledgeable and smart enough to avoid looking like idiots on national TV, as well as those who lack basic knowledge of constitutional law issues. As White puts it, » the process deters palpably unqualified nominations. Presidents know they cannot nominate a judge who cannot convey a basic understanding of the law in response to senators’ questions. » The confirmation process also creates opportunities for opposing party senators (and others) to dig for possible ethical and other flaws in the nominee’s background.
