Page:EO 14023 Commission Final Report.pdf/262

 #The FBI Report
 * 1) Third Party Witnesses
 * 2) The Senate’s Consent Function: Filibuster, Margins and Presidential Election Year Nominations



Most interviewees believe that the value of SCOTUS nomination hearings has increasingly diminished over time. Common descriptions included “kabuki theater,” “farce,” “charade,” “circus,” “a model of escape and evasion” and “insufferable.” Anyone who has watched recent hearings would be hard pressed to disagree. Given the extreme reluctance of nominees, questioning by Senators has become tedious and uninformative. One interviewee noted that Senate questioning has become “air cover for some to justify a negative vote they have already decided to make.”

There was consensus among all interviewees that it is not feasible to develop hard-and-fast formal rules regarding the questioning of SCOTUS nominees. Among other problems, such rules would turn the Judiciary Committee chair into a faux judge obligated to decide on the relevance, materiality and scope of his or her colleagues’ questions – inevitably a “lose–lose” proposition for the Chair, as one interviewee put it. It would also, as another interviewee noted, invade the “holy province of senatorial desire” to ask any questions he or she wants to pose.

A small number of Democrat interviewees and one Republican interviewee supported the view that nominees should answer questions about how they would have ruled in specific past Supreme Court decisions. These interviewees dismissed the notion that outside groups would use these answers to politicize the process even further, noting that the groups already assume that nominees embrace particular views and act on those assumptions accordingly. The Republican interviewee in this group supported this level of specificity based on his view that future cases involved different facts and thereby do not compromise a nominee’s judicial independence. Moreover, this interviewee believes that the public is entitled to know a nominee’s views and that Senators, with such information, can then vote based on the totality of the nominee’s record.

Two Democrat interviewees and one Republican interviewee support specific questioning but stop short of asking about how a nominee would have voted in past cases. The Republican interviewee noted the appropriateness of asking a nominee, “Had you been on the Court in