The Senate Supreme Court Confirmation Hearings

By John DiMotto

I will soon return to my series on Impeachment and Rehabilitation Evidence in Wisconsin, however, today I would like to reflect on the Senate Supreme Court Confirmation Hearing Process.

Many people ask me "what is the purpose of the Senate Supreme Court Confirmation Hearings?" I tell them that I believe it is to determine whether the nominee is qualified by knowledge, intelligence and experience to be a member of the Court. Whether the nominee is a political Conservative, Moderate or Liberal is not the standard.

Article II, Section 2 of the US Constitution grants the President, with the advice and consent of the Senate, the power to appoint judges of the supreme court. So long as the nominee is "qualified", I believe that selection should be honored. People may strongly disagree with decisions of perceived conservatives (Chief Justice Roberts, Justices Alito, Thomas and Scalia) or perceived liberals (Justices Stevens, Ginsberg, and Sotomayor) but no one can honestly say they are not qualified for the position. I was not in favor of some of the above justices when they were nominated, but they were qualified and as such I supported their confirmation. When the voters of our country elect a President, with that election comes the power and the right to choose any qualified person for the Court.

There are some "single issue" people (abortion, right to bear arms, same sex marriage, campaign finance) who take the position that if a nominee does not agree with their view of the issue or will not express an opinion on the issue that they should not be confirmed. I disagree. The fact that the nominee may not agree with their position does not make the nominee unqualified.

There are some people who believe that all justices on the Court should think alike. I disagree. I think that is unhealthy for the law and the country. You need a Court with members who will debate and challenge each other on the meaning of the Constitution and legislation and how it applies in each case. Debate causes the members of the Court to justify their positions; to think through their approach. For two interesting articles on the differing viewpoints on Elana Kagan and the Confirmation process, I would direct you to one by Marquette University Law Professor Ed Fallone and one by Marquette University Law Professor Rick Esenberg. They appeared in July Fourth edition of the Milwaukee Journal Sentinel "Crossroads" section.

In a word, the Senate Confirmation hearings should be about legal "qualifications" and not about political "rhetoric."