Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.
"The system's kind of broken," said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.
"Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues," such as a president's authority to go to war, said Biden.
As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC's "Today" show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.
"Just go to the Senate floor and debate the nominee's statements," the Delaware senator said, "instead of this game."
That was once standard practice. Until 1925, Supreme Court nominees were not expected to testify before a committee, and their nominations were sent straight to the floor, according to the Senate Historical Office.
Given the way the hearings are currently conducted, that would be an improvement. If a process that is supposed to reveal information does not reveal information, then by all means, don't waste everyone's time. However, it would be fairly straightforward to fix the system. It would just take bipartisan agreement that any nominee who failed to answer questions of the form:
In recent case X, which of the opinions offered do you believe to be the best legal reasoning and why?
would not be voted out of the Judiciary committee. That question is completely legitimate--it places prospective petitioners before the Court at no disadvantage, since sitting Justices have had to answer the same questions and write those opinions.