Before explaining the analogy, it is useful first to recall the farce that recent confirmation battles have become. Confirmation hearings have devolved into attempts to find gotcha moments, with the inevitable result that the nominees are reduced to mouthing meaningless blather like pledging to be “an umpire who calls balls and strikes.” A major factor contributing to this nonsense is the apparent belief that senators need to “keep an open mind” and not pre-judge a nominee before the hearings. For example, after the most recent nomination, Senator Kennedy said all of the now-expected things about withholding judgment until after the hearings, etc. During the hearings, Kennedy tried and failed to make an issue out of Judge Alito’s possible involvement with a possibly racist organization at Princeton, and the nomination ultimately succeeded (with Kennedy voting against the nomination anyway, even though Alito had met the basic standard of success in the absurd process that the hearings had become, i.e., he did not say anything outrageous).
Senators should simply drop this pretense. There is no reason to insist on withholding judgment until hearings are held, not merely because it is implausible to think that many senators have really not yet made up their minds, but because it is completely reasonable – and fair – to form judgments earlier in the process. Thus my analogy to basic civil procedure.
In a civil case, a party can request that a case be dismissed after the pleadings have been filed. This motion will be granted if a court concludes that the nonmoving party’s case cannot win, no matter what evidence might be found during discovery or presented at trial. For a Supreme Court nomination, the equivalent of a 12(b)(6) motion would be to look at what is immediately known about the nominee, including what the President asserts when submitting the nomination. The best recent example of a nomination that would fail a 12(b)(6)-equivalent motion is Harriet Miers (now back in the news for her possible involvement in the Gonzalez 8 Massacre). Bush nominated Miers for a seat on the Court, saying a few positive things about her and basically leaving everyone to look at her resume. It was not impressive. While it appears that her nomination ultimately failed because the conservative base of Mr. Bush’s party did not support her, it would have been completely reasonable for any senator to say, “I don’t need to sit through hearings to know that this nomination is unacceptable. I don’t even need to go through the equivalent of discovery. Giving every benefit of the doubt, this nominee does not possess the minimum qualifications to sit on the United States Supreme Court.”
A nominee who survives the 12(b)(6)-equivalent then proceeds to the equivalent of discovery. After all of the documents are in, it is then possible to get a very good picture of almost every nominee. In the cases of the two most recent successful nominees, it was completely obvious that both Roberts and Alito were movement conservatives who would decide cases in the way that they have, in fact, decided cases. Some commentators mused openly about pleasant or unpleasant surprises, but it was really beyond reasonable doubt what kind of justices these men would become. Why have hearings? The supposed reason was that people like Kennedy wanted to appear to be “fair,” where fairness in this context took on the odd meaning of giving someone the opportunity to put his foot in his mouth.
The equivalent of summary judgment would have solved this. No one who read the record on Roberts or Alito could have failed to make a reasoned judgment about their fitness to serve. Those senators who wanted to put movement conservatives on the Court could happily vote to confirm, and those who felt otherwise could vote no. The way the process actually played out was not just a waste of everyone’s time but a trap for those who had every reason (based on their viewpoints) to vote against confirmation. It should have been possible for any senator to announce the equivalent of his or her judgment about a summary judgment motion, saying that we knew enough to vote without the equivalent of a trial. And most importantly, doing so would have been “fair” in the very real sense that the whole notion of summary judgment itself is fair. That is, the legal system readily accepts the idea that many questions need not go to trial and that fair and disinterested adjudicators can reach conclusions on the basis of evidence short of direct testimony.
The most likely result of this approach would be the elimination of most confirmation hearings. Few nominees would be so borderline as to require hearings to fill in their views to satisfy senators’ curiosity. On those occasions when hearings were called, moreover, they might actually be interesting, because a president who could not count on 51 votes to confirm a nominee on the basis of the paper record might be compelled to nominate someone whose stated views during confirmation hearings would matter. Over-coaching and dissembling would still quite possibly be part of the process, but if the Senate convenes hearings only after determining that a nominee is really a close call, it would presumably be up to the nominee to make the case that she affirmatively deserves to be confirmed rather than resting on the current presumption that she can only be rejected if she commits a gaffe.
My argument, by the way, is nonpartisan. Senators of both parties should feel comfortable taking this approach, no matter the president’s party. My guess, in fact, is that Republican senators are likely to take the equivalent of this approach with any future Democratic nominee, rejecting nominees out of hand who appear to be too liberal. Many but by no means all Democratic senators have apparently taken this approach to Bush’s nominees. Being clear and honest about what they are doing, though, promises to improve the process by making it clear that senators are applying well-established approaches to legal decision making, clarifying where the presumptions lie and making it clear that Supreme Court justices should be chosen on the basis of the senators’ judgments of their merits and not on whether sufficient drama could be manufactured during televised hearings.