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Judge H. Lee Sarokin Headshot

Cirque du Soleil Scheduled for Return Engagement at Senate Judiciary Committee

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Senate hearings for Supreme Court nominees are entertaining, but that is not their real purpose. They are intended to elicit information about the nominee (not the Senators--- as one might gather in watching), so that a decision can be made regarding the qualifications of the nominee to serve on the United States Supreme Court. I have the following suggestions so that the proceedings will not once again become an embarrassment to the Senate Judiciary Committee or the American public:

1. No preliminary statement shall be made by any Senator about the importance of a fair and impartial Supreme Court or that a nominee must be dedicated to the Constitution and the Rule of Law. No use of the word "activist" shall be permitted. No statement shall be made which indicates or hints at the Senator's intended vote before a single word of testimony has been uttered. We have this unique belief in our country that verdicts should be rendered after hearing the evidence, not before. Of course, no preliminary statements by the Senators at all would be the optimum.

2. No leading or self-serving question shall be asked by any Senator which glorifies the Senator's past deeds or current views. No Republican Senator shall be permitted to announce in advance an intention to be fair to the nominee.

3. Now to be serious, in advance of the hearing, the nominee shall be given a list of the 10 decisions that the Committee believes are the most controversial and be asked to submit in writing whether or not he or she agrees with the reasoning of either the majority or the dissent in those decisions and explain why. Questions at the hearing shall be primarily directed to those responses.

There would be no greater test of a nominee's intelligence, scholarship, experience and judicial philosophy. I know that there is this inexplicable acceptance of a nominee's refusal to answer such questions on the grounds that the same or similar issue might come before the Court, if the nominee is confirmed. I suspect that the theory is that the justice might have to recuse himself or herself because of having expressed a prior view on the subject. I believe that defense and the refusal to answer is totally without merit and bogus.

If new legislation is proposed (as is expected) regarding corporate election spending and comes before the Court, those Justices who have already expressed themselves in the Citizens Union case will not be required to recuse themselves. Therefore, neither would a nominee who announced agreement or disagreement with the decision before confirmation. Instead of trying to ascertain a nominee's views through some back door and with frequently irrelevant questions, why not come right out and ask what is pertinent and appropriate to the inquiry-----a view of prior opinions---not future ones.

Otherwise, why not just have the nominee mail in: I will abide by the Constitution and the Rule of Law, be guided by stare decisis and not carry out some personal agenda which I may have (but I'm not telling you.) We have to assume that every President of the United States will try (but not always succeed) in nominating an experienced and intelligent person to the Supreme Court of whom the President can be proud. The only issue now (although it has not always been) is the judicial philosophy of the candidate. Why not ask them directly about their view of the recent major cases and end the three ring circus? Otherwise----just send in the clowns!*

*A Little Night Music, Stephen Sondeim