The Virtues of Supreme Silence

Why Supreme Court nominees should avoid their own confirmation hearings

Millions of Americans tuned in last week to Sonia Sotomayor's testimony before the Senate Judiciary Committee. What did they learn? "Nothing," Harvard Law professor Laurence Tribe told The New York Times. Actually, we did learn something—that we should stop inviting Supreme Court nominees to testify in confirmation hearings.

Sotomayor is reputed to be a lively woman with strong opinions and a sometimes aggressive demeanor on the bench. But appearing in place of the veteran federal judge was an android copy of her, lacking any recognizably human quality except extreme caution. She makes Ben Stein look like Jim Cramer.

Her appearances before the committee proved a couple of things. One is that she can look interested while listening to a pinstriped gasbag declaim at length about some topic that a dozen other pinstriped gasbags have already pronounced upon.

Another is that pointed questions bounce off of her as though she has a personal anti-missile system. Someone could have asked, "Do you think the Constitution gives the Department of Motor Vehicles the power to deep-fry parking violators in vats of lard?" and Sotomayor would have paused thoughtfully and replied, "Senator, I think it would be inappropriate for me to address hypothetical questions on a matter that may come before the court."

Sotomayor declined to answer any inquiry in a way that would reveal anything. Asked about affirmative action, the Second Amendment, foreign law, and abortion rights, she smothered each question in thick blankets of gray verbiage.

Many answers could have been plagiarized from the testimony of John Roberts or Stephen Breyer or Samuel Alito. These days, Supreme Court nominees manage to sound as indistinguishable as Miss America finalists addressing world peace, and not a whole lot smarter.

So why bother with this exasperating ritual? The republic managed fine without it for a century and a half. Justices from John Jay to Oliver Wendell Holmes Jr. were confirmed without having to argue on their own behalf. Not until 1925 did a Supreme Court nominee agree to appear before the Judiciary Committee.

In 1939, though, Felix Frankfurter declined on the grounds that he had classes to teach at Harvard Law School. After relenting, he warned senators that it would be "improper" and in "bad taste" for a nominee "to express his views on any controversial issues affecting the court." If they wanted to assess his thinking, Frankfurter said, "My attitude and outlook on relevant matters have been fully expressed over a period of years and are easily accessible."

He was more cooperative than Sherman Minton, appointed by Harry Truman in 1949. Called to testify, he politely invited the committee to take a long walk off a short pier. In a letter, Minton wrote, "I feel that personal participation by the nominee in the committee proceedings relating to his nomination presents a serious question of propriety, particularly when I might be required to express my views on highly controversial and litigious issues affecting the court."

Smarting from this rebuke, senators took the only reasonable course: They confirmed him.

Eventually, the tradition of reticence gave way and nominees found themselves with no choice but to show up and submit to lengthy interrogation under bright lights. Sometimes the hearings yielded helpful information.

But in 1987, after Robert Bork spent days elaborating controversial positions he had taken as a professor, his nomination went down in flames. So his successors learned to use as many words as possible to say as little as they could. That's how confirmation hearings degenerated into a tedious time suck on the order of watching third-graders try to pry open a locked safe with a Q-tip.

If the Judiciary Committee wants to know about how a prospective justice will behave on the court, it can look at her writings, speeches, and record as a lawyer or judge. It can ask those who know her for insights into her temperament and personality. It can summon legal experts to analyze her publicly stated thoughts. It can read her horoscope. None of these could possibly be less fruitful than the current practice.

Supreme Court nominees can show up on Capitol Hill to squander precious days of our lives saying nothing. Better for all of us if they stay home and do the same.

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