Former U.S. Sen. Fred Thompson blasted the Supreme Court confirmation hearing process for Justice Sonia Sotomayor as an absurd waste of time that produces nothing except occasional gaffes or sound bites from politicians.
“The process is basically for the purpose of giving the nominee the opportunity to commit a gaffe or other unforced error,” Thompson, a former Republican presidential candidate from Tennessee said in his weekly podcast posted on YouTube.
Thompson has ample experience with confirmation battles: He successfully guided Chief Justice John Roberts through his confirmation process.
A nominee might be denied confirmation not so much for lack of qualifications or even judicial philosophy but for not being clever or artful enough to win the game, Thompson said.
“For some time now everyone has understood the name of the game,” he said. “Take as much off the table as possible as inappropriate for discussion; then, dance around the rest. When you get a question that you're expected to answer, try to sound as knowledgeable as possible, but play for time and never say anything committee members would find objectionable.”
Thompson, who now hosts a conservative radio talk show on Westwood One, contends that two things work against the revelation of any substantive new information during a confirmation hearing: A nominee can and should refuse to give an opinion regarding any legal issue that might come before the court. A nominee never should make the mistake of committing candor.
Thompson referenced the 1987 Supreme Court confirmation hearings of Justice Robert Bork, during which Bork engaged in an open and candid dialogue with regard to his judicial philosophy.
“Bork refused to subject himself to the usual dog and pony Q and A, how-to-handle-the-senators sessions now given to nominees in preparation for their hearings,” Thompson said of the so-called “murder board."
“We know how that turned out. The odds are great that never again will a nominee make the mistake of committing candor,” Thompson said.
What a nominee says during the hearings, while not irrelevant, is one of the least important considerations upon which senators should base their vote, he said.
“A nominee’s judicial and professional record, along with their public statements and reputation for integrity, are much more reliable indicators” of the kind of judge the nominee would be, he wrote.
“Our Founding Fathers recognized this early on,” he said. “And it is the main reason confirmation hearings were not held on a regular basis until the 1950s.
Thompson recommended that the confirmation process judge a person on the basis of their entire life and record, not on a few days of practiced, self-serving comments.
“It’s absurd to think that their service on the Supreme Court would be consistent with their statements before a committee they will likely never sit before again,” Thompson said. “It’s inconsistent with both logic and experience.”
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