Let the Nominee Stay Home

[groovedaddy]

ANY day now, President Obama is expected to nominate a successor to Justice David Souter. After that, the summer will unfold according to ritual. The nominee’s supporters will make absurdly glowing claims about his or her qualifications, the opponents will propound patently ridiculous charges of radicalism, bias or incompetence, and the nation will move on to the strangest spectacle of all — the Supreme Court confirmation hearing.

Confirmation hearings for potential justices have become so intricately woven into our political tapestry that Americans might be excused for thinking that they were part of the original design. They were not. The modern tradition of requiring every nominee to sit before the Senate Judiciary Committee as its members ask about judicial philosophy and views on various cases stems from one of the grimmer episodes of American history: the last-ditch effort by determined segregationists to derail Brown v. Board of Education.

Before that 1954 case, it was virtually unheard of for a nominee to appear in person before the Senate. Only two had been called, each because of special circumstances surrounding the nomination. But there was always a sense that demanding testimony was somehow unseemly. The bar frowned on the practice, and the senators avoided it. Abraham Lincoln, questioned about his nomination of Salmon P. Chase as chief justice, responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Brown changed everything. Infuriated by the Supreme Court’s temerity in striking down public school segregation, the Southern Democrats who in those days still largely ran the Senate began to require that all potential justices give testimony before the Judiciary Committee. When the nominees appeared, the Dixiecrat Senators grilled them on Brown. The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as “a matter of propriety.” One by one, later nominees followed his example.

http://www.nytimes.com/2009/05/10/opinion/10carter.html?th&emc=th

[Kcoll]

1. Let the nominee stay home

That might easily give Republicans an issue with some traction. ("Obama's nominee refuses to let the American people meet him/her." "The administration that promised transparency is hiding its nominee.")
On the other hand if such a tack is ever to be tried, now may be the time. The Democrats may easily have the 60 votes, and since the nominee is only replacing a "liberal" justice, the balance on the court will not change, so the stakes are lower.