Tuesday, October 23, 2007

More from Eisgruber on the Legacy of the Bork Hearings

Chris Eisgruber follows up on his first post at Balkinization with more on the legacy of the Bork hearings, from his book, The Next Justice: Repairing the Supreme Court Appointments Process, here and here.

His recommendations:
The Senate should make three changes to the way it evaluates nominees to the Court:

1. Evaluate nominees the way that presidents do. George W. Bush knew exactly what he was getting when he appointed Roberts and Alito to the Court. More generally, political scientists and historians have shown that presidents accurately assess the values of their nominees by looking at their past records. Nearly all the relevant information is available to senators, too. They should not hesitate to make judgments on the basis of it.

2. Put the burden of explanation on the nominee. If senators can judge nominees on the basis of their records, what is the point of holding hearings? To give the nominees a chance to explain. Senators, though, should not hesitate to put the burden of proof on the nominee. If a nominee with a starkly partisan record claims to be nothing more than a neutral umpire, that is a good reason for a senator to vote against confirmation.

3. Give up the quest for the ‘smoking gun.’ Senators and the public often seem to treat confirmation hearings as an oral examination. Nominees who pass are entitled to confirmation. That puts an impossible burden on the senate: smart, well-coached nominees have no trouble producing bland answers to tough questions.

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