it's worth noting that it's not over yet. no vote has been taken on the alito nomination, in either the judiciary committee or in the full senate. if the democrats suddenly grew a spine, they could still filibuster the nomination.
the problem with the alito hearings is not that it secured alito the nomination, it's that nothing happened at all. biden's was partly right when he said that confirmation hearings are useless. but the problem is not that they are inherently useless, but rather that the members of the judiciary committee have made them useless. rather than being a real test of the candidates judicial philosophy, biden and his compatriots have turned them into an opportunity to wax philosophically about what they think the constitution means to them. with a few notable exceptions, the senators utterly failed to ask any meaningful questions of the nominee.
the most revealing moment in all of this was the conservative's reaction to one of the few moments in this entire process when alito was actually asked a hard question: senator kennedy's questions about his involvement with CAP. for some reason a series of questions that raised the issue of his character were seen as "beyond the pale" when considering a lifetime appointment to the nation's highest court, even when the nominee was given every opportunity to respond to whatever allegation the senators threw at him. the fact that one instance of hard questions with hard follow-ups was seen as exceptional and out-of-bounds is a testament to just how pathetic the rest of the hearings have turned out to be.
if the process has become useless it's only because the way the senators themselves act during the hearings. put another way, the hearings aren't useless, the senators on the judiciary are.
and i'm not just criticizing the democrats on the committee. a supreme court appointment should be a serious matter for everyone. members of both parties have a constitutional obligation to assure that alito is the right man for the job. there should be no "defenders of the nominee" on the judiciary committee. even if a senator is inclined to vote for the candidate, that doesn't mean the senator isn't obligated to ask him hard questions to make absolutely sure. a supreme court justice is simply too important an issue to blindly defer to whoever the president thinks is good for the job. if the democrats failed in their obligations during the hearing for asking mostly weak and ineffective questions, the republican's failure even worse for asking nothing of the nominee at all.
alito was well trained to evade questions posed by the committee. i don't really blame him for that. these days a nominee has every incentive to avoid answering questions as much as possible. but the problem was not alito's evasiveness, it was the questions posed hy the committee, or the lack thereof.
maybe it's just because i sometimes cross-examine people as part of my job, but the questions that i saw during the hearing were pathetically bad. i've had plenty of evasive witnesses before, but that doesn't mean you should just give up. pam spaulding posted excerpts from an interview with alan dershowitz that illustrated how it is possible to nail down an evasive nominee. pam already posted the best bit in her post, but it's worth repeating here:
DERSHOWITZ: Well, you know, if I were a senator, I'd ask them the following question. I would say, "You have said that your personal views are utterly irrelevant to how you will decide cases. We don't agree with you on that. But since you've said that, let's ask you some really hard questions about your personal views."(emphasis added)
"Is your mother right when she says that you personally strongly oppose a woman's right to choose abortion? What do you personally think of gay rights? What do you personally think of affirmative action?"
He couldn't say, "Well, I can't give you those answers because it will come before me." No, no, no, no. You've told us that your personal views are irrelevant. We think they're relevant, so give us the answers. I think it's a very, very hard question for him to duck.
TOOBIN: You know, Anderson, all 18 of those senators on that committee had to answer when they ran for office, "Do you think Roe v. Wade should be overturned?" Yet the one person in that room who actually has something to say about whether Roe v. Wade gets overturned doesn't have to answer that question.
DERSHOWITZ: That's right.
TOOBIN: And this isn't something that is just for Republicans. Stephen Breyer and Ruth Bader Ginsburg also ducked that question. I just think the process is messed up in a way that we, the public, and the senators don't get the information that they need.
DERSHOWITZ: Let me give you some proof of that. The D.C. Circuit Court of Appeals, one of the best courts in the country, and their judges, when they come out after to do an appeal, they will often say to you, "You know, we have a view on this case. Here's what we think now. Try to talk us out of it."
Some of the best appellate court judges tell us in advance what their views are. There is nothing inconsistent with a judge expressing his views but keeping an open mind. And they ought to demand of every nominee, Republican or Democrat, "Tell us what your current views are or what your past views were."
Bush vs. Gore. Where were you on the night that Bush vs. Gore was announced? What did you say to your friends when the decision came down? What did you actually say? Did you write e-mails to anybody? Did you agree with the decision, not what would you do in the future?
COOPER: Right.
DERSHOWITZ: Senators don't know how to ask these hard questions.
i'm not a big fan of dershowitz, but there's no question that he's right. despite all the lawyers on the judiciary committee, they really don't know how to ask hard questions.
as i said at the beginning of this post, this doesn't have to be over yet. if the democrats really truly want to stop this nomination, they can still try a filibuster. it just seems like they're more concerned with saying they can't do anything about it, shrugging their shoulders and moving on to other things.
