Let’s Play Ball!

Does the Supreme Court nomination process work? That was the topic of an Issues Forum held at the Brookings Institute following the conclusion of Judge Samuel A. Alito Jr.’s appearance before the Senate Judiciary Committee, as Senate members performed their constitutionally mandated duty of providing “advice and consent” in the President’s selection of a Supreme Court nominee.

The panel discussion was moderated by non-resident Senior Fellow, Stuart Taylor, with the most notable contrast in panelists being Adam Ciongoli, a former Law Clerk to Judge Alito and panelist Elliot Mincberg, Senior Vice President and General Counsel to People for the American Way, a group strongly opposed to Alito’s nomination.

The focus of this forum was on the nomination process in light of the recent Alito nomination hearings. Has the nomination process evolved or devolved? What does it say when first-rate prospective Supreme Court candidates withdraw from the nomination because they do not want to subject themselves to the “process.” And, according to Brookings Institute Senior Fellow and moderator, Stuart Taylor (National Journal columnist and Newsweek contributor), when unethical traits that do not exist, such as “sexist” and “racist” are suggested during the hearings, the process itself comes into question.

The most striking comment during the forum came by way of a confession by Mr. Ciongoli. He stated that at the end of the hearings, when Senators Leahy and Specter congratulated each other on the “dignified hearing,” he honestly felt the same way. It was only when his father – a Washington outsider – expressed his disappointment in the lack of civility shown to Judge Alito during the hearings that he realized he had become callous. As a long-time veteran of Washington politics, he had become accustomed to and accepted the political game.

And that is the concern.

What we did learn about Judge Alito – that we could not have gleaned from his 15-year voluminous judicial record – was that he could pass that “grace under pressure” test and remain composed, sharp and consistent during a volley of speeches, punctuated by questions, from seasoned insiders who relish the give-and-take of a good game of hardball. It’s a Washington thing.

And it is really hard to quit a sport as enjoyable as politics – and one that does take a certain nimbleness of tongue, mental agility, cunning and craftiness. It was evident in Elliot Mincberg’s commentary on Alito’s dissent in the Rybar case when he started talking about machines guns – interstate commerce – two people by the name of Show and Tell – the appeal of the appeal of the appeal (I must have dozed), and the horrific consequences to 99 percent of America’s streams and lakes should Alito be given the chance to errantly interpret the Clean Water Act (that woke me up).

And it was evident in Adam Ciongoli’s rather fun allegory about a man who murdered his parents and then pleaded for mercy from the court on the grounds he was an orphan, given in riposte to one of Elliot Minceberg’s volleys.

Although there was no general consensus on the utility of the confirmation process – or the success of Judge Alito’s confirmation – they all did agree on one thing: there really were too many speeches.