City of Brass

City of Brass


SCOTUS confirmation kabuki reform: a simple suggestion

posted by Aziz Poonawalla

KABUKI_8 The SCOTUS drama is playing out as usual and completely as expected – which is all the more ironic given that the nominee is the one who best made the argument about SCOTUS confirmations being more about drama than substance.

With Elena Kagan essentially a cipher as far as her ideology goes (which is also a survival mechanism essential to surviving said kabuki drama), the actual value of these proceedings in actually determining her value or qualification to be on the Court is essentially zero.

But what are the incentives for the system to change? well, none, really. But, what if there was a simple way to inject some actual substance to the process? I think there is.

Keep in mind that the primary function of a SCOTUS justice is to interpret law and write opinions and dissents. In this they do have a staff to assist them with research, but ultimately the reasoning by which they arrive at their opinions (or dissent) is the key trait we are ultimately trying to assess. Thurgood Marshall may have been more of a seat of the pants type, but really not even his most ardent disciple (and Kagan comes close) will emulate him.

So, lets give our prospective nominees some homework. Instead of Senators grilling the nominee from the same obsolete handbook of judicial activism BAD slavish adherence to our political views GOOD, how about every member of the Senate Judiciary Committee (Republican and Democrat alike) pick a recent (10 years) SCOTUS case and ask the nominee to write either a dissent or opinion on it, as if she were a sitting justice?

The advantage of this would be that we would be making the nominee actually show us where they stand on the issues and also demonstrate their aptitude for the rigor that the job requires.

Granted, a nominee doesn’t have staff, but for the purposes of confirmation every sitting justice could donate a staff member for a period of a month, or we could just allocate some nominal funds to cover the cost of hiring staff for the nominee’s use.

The timeline would also become more firm – within 2 weeks after nomination, the Judiciary Committee needs to pick its cases for the nominee to process. Then the nominee is given 2 weeks to assemble staff, and then another 6 weeks to write the opinions and dissents. After that point, the opinions are published online and given to the Committee for evaluation. Then, the hearings can commence – but this time, it wont be a blank slate but a very rich field indeed.

This isn’t a partisan proposal but one that should appeal to everyone across the spectrum. To that end I am cross posting this at my RedState and Dailykos diaries as well as on my blog at Beliefnet. I’m sure that there are flaws in the idea but surely it can be improved upon, with  netroots brain power.



  • http://hispeaceuponus.com Dustin

    I think this is a great idea. It certainly is much better than what currently happens. I’m tired of the nomination process being nothing more than an opportunity for senators to make political points with their base. We already know what they think.

  • Timhogs

    Take it a step further. Many professional organizations require a certain amount of annual training to retain standing (my x-ray tech wife, for example, must earn so many CEUs per year to retain her certification in the American Society of Radiological Technicians; and maintaining that certification is a requirement of her employment). Perhaps the American Bar Association and related State Bars should require their members to author and post every year one or two “opinions” on cases before SCOTUS and/or higher courts in their states for peer review. The benefit to the individual lawyer would be the ability to check (and update as needed) their understanding of the current state of the law; the benefit to the Bars would be in “quality control,” if you will, of the membership.

  • Marian

    Hot dog! I really like this idea!

  • Jonscott

    Great idea … no chance of ever being implemented under the present system. The purpose of the process is not to get the best person on the SCOTUS … it’s for committee members to let their respective constituencies see where THEY stand.

  • Mary

    Finally, a chance to actually have members of Congress do some homework before sounding off like “Monday morning quarterbacks”. So much of their questioning is shared ignorance rather than enlighted questions/comments,

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