Basically, the nominee must say that he’ll have an open mind, that he will decide cases according to the “rule of law,” that he has respect for precedent, and that he won’t be a “judicial activist.” The nominee must sit calmly while Senators bluster and wait out the storm.
We’re learning next to nothing of importance at these hearings. With the exception of Robert Bork and Clarence Thomas, do the confirmation hearings really reveal much of anything at all?
One possible reason for this state of affairs is that the lessons of the Robert Bork hearing are well-known. Everybody knows not to reveal too much, not to lay out their full hand on the table.
Another reason is that much vetting and discussion occurs before the hearing. With Alito, there were few surprises at the hearing. Most of the discussion occurred beforehand in the media and in the blogosphere. Miers, for example, had a hearing of sorts and was rejected before her official confirmation hearing had even begun.
So perhaps we should stop looking to the hearings for much meaningful substance. Any real substance comes in the media and blogospheric discussions beforehand. The hearings are little more than an empty ritual.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.