The October 2009 ABA Magazine has a fascinating article, critiquing the confirmation hearing of Justice Sotomayor.

It’s a “Kabuki dance,” said Joe [Plugs] Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.

It’s “as if the public doesn’t have a right to know what you think about fundamental issues facing them,” he told John G. Roberts Jr. at his 2005 confirmation hearing for chief justice.

I agree with this article, and feel that the confirmation have become a dog and pony show, where the Justice closely hews a script, and says the right things in order to get confirmed. Sure the Senators might not like it, but it is the Senator’s politicization of the confirmation process that has mandated this farcical procedure.

Look at the partisan confirmation rejection of Judge Bork. Judge Bork, as a testament to his amazing grasp of Constitutional law, engaged the Senators in detailed discussions on the meaning of the Constitution, his jurisprudence, and how he would Judge. Why would any judge ever risk his confirmation to the Supreme Court by foolishly answering questions.

The Senators have created a perverse incentive to Judicial nominees to give bland, boring answers, that cannot be taken out of context.

I watched Sotomayor’s confirmation gavel to gavel (when I really should have been studying for the Bar, results come out next week). Panelists at the Constitution in 2020 conference argued that these hearings should be a teaching moment. I agree. If Sotomayor represents everything President Obama considers implicit in the liberal view of the Constitution, she should have proudly conveyed that message. Rather, Sotomayor sounded like a broken originalist record, and kept repeating the maxim that you interpret the law as it is written. If she believes that, her previous opinions sure do not reflect that.

But, I blame the Senators for destroying these teaching moments. If a candidate actually discussed his view of the Constitution in any detail, he only has his confirmation to lose. Anyway, the ABA article should really place more of the blame on the Senators. The judicial candidates are just doing what is rationally in their self interest.