Journalists are getting excited about the same talking points concerning Elena Kagan. What would it mean for society to have a trifecta of women on the Supreme Court? Is it good, bad, or relatively irrelevant that Kagan only argued six cases in front of the Supreme Court? Should fashionable Americans cringe when she wears Princeton sweatpants, an Oxford t-shirt and Harvard baseball cap as part of the same outfit? How will Republican senators respond to hot-button issues such as Kagan's opposition to the military's "don't ask, don't tell" policy?
Similar to most Americans, I want to see a change in how we decide who gets a lifetime contract to uphold laws in this country. Let me state from the onset, I am less interested in Kagan and more interested in the confirmation process. There are two sides to the process -- what Kagan brings to the table and what a slew of senators will say and do.
Who has not been amazed that over the past 20 years, Supreme Court nominees can essentially evade questions about any value or belief they hold? Clarence Thomas, in his confirmation hearing, stated that he never thought about Roe v. Wade. Since then, every nominee has cribbed this game-winning strategy. To reveal your thoughts is to lose votes from one side of the aisle. Is it possible to modify how confirmation hearings are conducted so that a nominee can inform the public about their value system? If a nominee is punished for disclosure they are going to express as little as possible. To me, there is nothing more important than getting the best person confirmed. Period.
I have been trying to think of ways that senators can unleash their intelligence, creativity, and independent thinking that made them want to get into government in the first place. What if senators had to field questions about their upcoming vote while outside of the spotlight? What if they were videotaped while answering? What if these videos could be shared with the general public? Imagine senators were asked questions such as the following:
Name three supreme court decisions that are the most important to you. Why? How would you feel if a nominee disagreed with them?
If you could ask a nominee a single, anonymous question to help with your decision, what would it be and why?
Rank in order how important the following is to your vote (no exemptions allowed): age, race/ethnicity, religion, years of legal experience, political party affiliation, evidence of superior intellectual capacity, ability to resist public opinion, ability to resist judicial activism, appreciation of the separation of power principle, personal values on gun rights, and personal values on abortion.
How important is it to vote with your party? From 0 (not at all) to 100 (yes, without reservation)
Would you be willing to deviate from your political party in this vote? Yes or No. Give a concrete example of a situation where you would.
Senators should have no advance notice about the content of these questions. Senators should not know that their answers could potentially be shared with the general public until moments before when they complete a consent form. When each person is held accountable for their decisions and the motives behind them, we might create an environment where senators are apt to showcase strength and virtue such as...
Curiosity- intentionally seeking out new information and being open to challenging preconceived notions
Moral Courage- acting in ways that are consistent with what one believes is right, even if there is serious opposition
Judgment- being willing to suspend initial impressions and allegiances so that all of the evidence can be weighed before reaching a decision
Authenticity- acting in ways that are consistent with one's beliefs and values, and making all of this transparent
Strategic awareness- possessing an understanding of the wider factors and bigger picture that inform decision-making
My hope is that we, the people, demand changes in how the system operates. No self-respecting organization would conduct a job search that approximates the Senate confirmation. Senators can be uninformed, mindless slaves to their party or the breeze of public opinion without recourse. But it is not just the senators. Nominees are providing insufficient information to questions and yet, receive a lifetime contract (and a massive pension for the rest of their years). In any other situation, who would hire someone that evades questions in a job interview?
Right now, the system is designed to maintain conformity. Young senators are terrified of being impotent and thus, often fail to act on their strengths. Seasoned senators are often caught up in their power and privilege. When senators assume they are experts in these hearing they fail to pay attention to what makes every candidate and decision unique from any other. And who can blame candidates for saying virtually nothing when the system rewards this behavior.
Let's take a closer look at the system and start tweaking. Let's give Supreme Court nominees and senators an opportunity to realize their strengths....
Dr. Todd B. Kashdan is a clinical psychologist and professor of psychology at George Mason University. He is the author of Curious? Discover the Missing Ingredient to a Fulfilling Life. For more about his speaking engagements, books, and research, go to www.toddkashdan.com or Research Laboratory