We need to rethink the whole Supreme Court confirmation hearing process. Right now, it's spectacularly boring, mostly because of the lack of drama. Kagan will get up, say nothing of consequence, and eventually be confirmed essentially along party lines. This, despite writing herself in 1995 that judicial nominees need to speak up and actually answer questions.
Perhaps the Senate should take a page out of Major League Baseball Commissioner Bud Selig's playbook. Up until 2002, ratings for the All-Star Game were declining annually, managers were just going through the motions to make sure everyone got a chance to play, and eventually in 2002, the game ended in a tie. This seems like a pretty good analogy to the confirmation process, actually. It's boring because no one involved actually cares enough to make it a real process and thus it's a farce. Senators are going through the motions because the Constitution mandates it, and they make sure each Senator gets a chance to play, regardless if they have a contribution to make. Both parties are predictable (hint: this will happen again), and in the end, this year, we may well end up with a tie.
A tie here, in my mind, would be learning nothing about Elena Kagan. As we have pointed out several times in this blog (and has been documented plenty elsewhere - most thoroughly by Glenn Greenwald), we know nothing about Kagan at all, despite her having been an academic for 20 years. Thus, like a tie in baseball, neither side will have "won" in this battle, or at least we won't know.
So what to do? Selig would respond with a gimmick tying the All-Star Game to home field advantage in the playoffs. Unfortunately, I can't think of an analogue to this, since I don't think handicapping the next election is such a great (or you know, constitutional) idea. But I'd love to appropriate the slogan: "This Time It Counts!" Of course the Senators can do this on their own if there is as much outrage about the confirmation as there was about the All-Star Game. And they don't even have to change policy - all they have to do is tell the nominee that they will vote her down if she doesn't answer. Who a Justice will be is too important for politeness. We need to "end the tradition that allows Court nominees not to reveal their beliefs about legal issues except in the broadest terms." Of course, I'm not holding my breath.
I'll also note that not everyone thinks this is a good idea - at least one person - Stuart Taylor at the Atlantic - suggests that we should allow the Justices to go on being unquestioned, because if we look back and had the Justices run on their current records, none could ever be confirmed. Of course, if we started doing this with all Justices, the amount we'd pay attention to BS political attacks would decrease, or we'd never have another Justice, as Taylor points out. Because never having another Justice is not an option, I don't agree with his conclusion, but it's worth considering that real confirmations might not be all good.
