"The system's kind of broken," the Senator said. "[We should] just go to the Senate floor and debate the nominee's statements, instead of this game." Senator Biden's Needle in a Haystack

This week, we celebrated the confirmation of Justice Samuel Alito to the Supreme Court of the United States, and we reflected on the state of the judicial confirmation process.

But it was Senator Joseph Biden, once and future Democratic candidate for President, who really caught our attention.

You see, during Justice Alito's hearing before the Senate Judiciary Committee, Senator Biden's performance was, well, less than stellar. On the first day of questioning, Biden spent the bulk of his time delivering a rambling speech, the point of which could not be determined through a careful examination of the transcript.

Biden's Day One performance left him the target of many commentators over the next few days. So it's understandable that when Senator Biden made a truly significant pronouncement on Day Three of the hearing, no one but an Associated Press reporter was listening.

"The system's kind of broken," the Senator said. "[We should] just go to the Senate floor and debate the nominee's statements, instead of this game."

As if to squelch any question about the meaning, the AP reporter filled in the blanks: "Hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday."

Though it doesn't always transmit through his hot and inflated air, Biden is no dummy. Indeed, he's demonstrated his intelligence and insight on more than one occasion.

In this case, the good Senator is absolutely right. Confirmation hearings for judicial nominees ought to be abolished. Let's return to the Senate's practice prior to 1952 of holding confirmation hearings only when extraordinary circumstances warrant.

We've argued in the past that confirmation hearings serve to politicize the judiciary in a way that is bad for our government and bad for justice. As Justice Alito and Chief Justice Roberts explained to us any number of times, nominees to the federal bench shouldn't be expressing their opinions about matters that they might have to consider later.

But anyone with two brain cells to rub together can see that modern confirmation hearings are nothing more than Senatorial attempts to extract just that sort of information, largely on behalf of the special interest groups that fuel both their coffers and rhetoric. Senators want to know how a future judge or justice might rule on abortion, property rights, executive authority, congressional authority, separation of powers, civil rights and all the rest.

The Chief Justice came to his nomination with a relatively thin judicial record. Justice Alito brought one of the thickest in history. In either case, what did we learn -- what did Senators learn -- from the hearings that they didn't already know?

It's time for the confirmation sideshow to end.

February 2, 2006
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