In NationalJournal.com's previous excerpt of The Next Justice, by Princeton provost Christopher Eisgruber, a case was made for the confirmation process as a chance for senators to understand nominees' judicial philosophy more deeply, not to put them on the spot about their records. In Chapter 9, "How To Change The Hearings," Eisgruber goes a step further, arguing that senators should say up front what they know about a nominee and what they want to find out.

If senators can investigate nominees on the basis of their records and reputations, then why should they have to testify? They should not, answers Benjamin Wittes of the Washington Post. Wittes has recommended that the Senate do away with the practice of interrogating nominees. He writes that the hearings "almost invariably prove an embarrassing spectacle that yields minimal information." In his view, "the Senate generally votes on nominees with a rough sense of who they are," but not because of their testimony: "The nominees' testimony added virtually nothing to our understanding of these people." Wittes accordingly proposes that the Senate should "vote on a nominee on the basis of his or her record and the testimony of others."

This bracing suggestion has something to be said for it. Wittes is right about some key points: Senators, like presidents, can usually develop a good sense of a nominee's judicial philosophy on the basis of his or her record and reputation; the nominee's testimony has rarely added much to this understanding; and the hearings have degenerated into embarrassing spectacles. It is hard to believe, though, that Americans today would be satisfied with a process in which Supreme Court nominees were confirmed or rejected without first being questioned about their views.

In any event, nominee testimony can play a useful role in the confirmation process, provided that senators and the American public reduce their expectations for what such testimony can accomplish. Neither the Senate nor the public should regard the hearings as a kind of trial, in which the nominee must be judged on the basis of the testimony he or she renders under oath. The point of the hearings, and of the senators' questions to the nominee, should be to invite (not compel) the nominee to express his or her judicial philosophy, and to allow the nominee to respond to questions and doubts raised by his or her record.

To use the hearings this way, senators must be more candid with the public about what they know before the hearings begin. If they already know a great deal about the nominee's judicial philosophy, and if they believe that philosophy might be unacceptable, they should not pretend that the hearings provide the first or best opportunity to discover the nominee's views. Instead, they should say what they believe about the nominee's views. If the senators have doubts about whether the nominee is a moderate, they should demand affirmative evidence of moderation, and they should make clear that the burden is on the nominee to rebut any inferences fairly drawn from his or her career and published work.

For example, a senator might open the hearings by saying something like this:

"I have reviewed all of your opinions. I have also spoken with many people who have worked alongside you. The pattern I have found is a troubling one. You consistently reach the most [conservative or liberal] political outcomes allowable by the law and the facts. I believe that the American people want a justice who is a moderate [conservative or liberal], not an extremist. In light of your record, you need to provide this panel with some evidence that you are such a moderate."

To some extent, Senator [Charles] Schumer took this approach during the [John] Roberts hearings. He said that Roberts had "been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue." He added, "That gives rise to a question many are asking: What do they know that we don't?" Schumer asked Roberts to clarify his judicial philosophy by answering questions about past cases. He advised Roberts that "the burden, sir, is on you... to help us determine whether you'll be a conservative but mainstream chief justice or an ideologue."

Yet Schumer also told Roberts that "[a]s far as your own views go... we only have scratched the surface. In a sense, we have seen 10 percent of you -- just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship." One has to suspect that Schumer knew more than 10 percent of Roberts's jurisprudence when he began his questioning. The American public would be better off if he and other senators were encouraged to be more frank about what they know. Otherwise we are unlikely to learn much about the submerged part of the iceberg: In the hearings, candidates work hard to make sure they show nothing but the innocuous, visible tip.

(Excerpt courtesy of the author and Princeton University Press.)