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The Davis-Comiskey Debate

Richard Davis, author of Electing Justice, and Michael Comiskey certainly chose a propitious time to debate the judicial confirmation process. Last week, as the Bush Administration lost a nominee, Davis and Comiskey debated the limitations of the SCOTUS nomination and confirmation process, the reluctance of nominees to answer the thorniest questions for fear of revealing their ideological leanings and the tendancy of recent presidents to choose “stealth” nominees.

On Thursday, events caught up with them. As Comiskey put it, “the withdrawal of the Miers nomination demonstrates that the stealth strategy can fail miserably. Both the political left and the right may oppose such a nominee.”

Davis, as he does in his book, makes some rather bold proposals to fix the SCOTUS confirmation hearings, including:

(4) Ask questions about personal views, but in that line of questioning emphasize the fact that revealing personal views is not the same as suggesting that such views are determinative in judicial decision-making. The ideal justice is one who does not lie about their personal views (i.e. “I have never discussed Roe v. Wade), but who does not rely on those personal views to organize their approach to the job of judging. Look for a nominee who admits they hold personal views but is more wedded to the law and precedent than furthering an agenda. Initially, nominees will be reticent to discuss personal views (such as John Roberts), but perhaps over time they will be free to admit they have views but those views are only one part of their approach to judging.

(5) Punish the nominee for deceptiveness. The Senate cannot assert its constitutional role if those who avoid answering are routinely confirmed anyway. The Senate appears like a paper tiger engaging in a charade that makes the individual senators look tough but weakens the Senate’s power.

Hearings should not disintegrate into meaningless encounters. The Senate Judiciary Committee members must perform their investigative task with greater seriousness in order to serve the American public who deserve a more genuine process of scrutinizing Supreme Court nominees.

LINK to the entire debate at the Legalaffairs.org ‘Debate Club.’

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