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One of the Senate’s unique responsibilities is to “advise and consent” on nominations to senior positions in the Executive Branch, as well as every federal judgeship, from districts to the Supreme Court. It is serious business and takes a lot of time.
I would know since I’ve been a nominee subject to Senate confirmation (Federal Election Commission, 1996. It’s a long story, but I pulled the plug on my own nomination. A story for another day).
The last confirmation hearings that gripped the American public was the Brett Kavanaugh hearing in 2018 for his eventual confirmation to the US Supreme Court. I bet you remember it. Remember Christine Blasey Ford, with her last-minute, vague accusations of sexual abuse, followed by Kavanaugh’s “angry” response? And Senator Jeff Flake’s (R-AZ) weak, flaccid acquiesce to an extra week of FBI investigations, despite a clear lack of evidence of any wrongdoing, at the prodding of the well-disguised, deep partisanship of his colleague, Chris Coons (D-DE), who was clearly committed to destroying Kavanaugh’s nomination, along with his reputation? I’ll confess to being somewhat radicalized by it.
Despite a slow start due to the Senate’s 50-50 partisan split following the 2020 elections, they have done well to confirm some 20 presidential nominees to a variety of positions, almost all on a bipartisan basis, certainly much more so than President Trump’s nominees enjoyed. Credit Republicans for not lowering themselves into lock-step, purely partisan opposition to every nominee. They have long and consistently agreed that Presidents are generally entitled to their nominees, barring glaring disqualifications. Democrats during the Trump administration took a much more partisan approach. That’s simply a fact. But I digress.
There were two (three, actually, if you include the Xavier Becerra nomination for Secretary of Health and Human Services) notable confirmation hearings this past week, one for Judge Merrick Garland to serve as Attorney General, and Dr. Rachel Levine as Assistant Secretary of Health. Garland would – will – be a member of the President’s cabinet. Dr. Levine will not be, but will hold one perhaps the second most powerful position at the Department of Health and Human Services. Both are very likely to be confirmed.
Here’s a good summary of Judge Garland’s confirmation hearing via Fox News:
Judge Merrick Garland, President Biden’s attorney general nominee, repeatedly avoided providing direct answers to questions from Republican senators during Monday’s hearing before the Senate Judiciary Committee.
Garland dodged questions about the Durham investigation into the Trump-Russia probe origins, transgender athletes in high school sports and whether crossing the border illegally should be a criminal offense.
Sen. Josh Hawley, R-MO, asked Garland whether he believes that illegally crossing the border should remain a crime.
‘I haven’t thought about that question, I just haven’t thought about that question’ Garland said. ‘The president has made clear that we are a nation with borders, with national security, I don’t know of a proposal to decriminalize but still make it unlawful to answer, I just haven’t thought about it.’
Umm, okay. So a long-serving federal appeals court judge and former federal prosecutor (he put Timothy McVey behind bars (securing the death penalty) after the 1995 Oklahoma City Murrah Building terrorist attack) cannot answer basic questions about illegal immigration. Never mind that Garland, now, is backing off his previous support for the death penalty. I get that President Biden opposes it, and he’s simply reflecting “Administration policy.” We’re all entitled to change our minds. Timothy McVeigh might wish he’d changed his mind a bit earlier (I’m glad he didn’t).
The second hearing was for my bête noire, one Dr. Rachel Levine, perhaps the most incompetent Secretary of Health to ever hold that position in the Commonwealth of Pennsylvania (disclosure: until January, I was a Pennsylvania resident for 18 years). It is noteworthy that the transgender child behavior psychologist held her hearing on the day that the US House was passing the Equity Act on a largely partisan vote.
No one remembers the hearing except for a line of questioning about genital mutilation of children by US Sen. Rand Paul (R-KY), a medical doctor (ophthalmologist by profession). Levine didn’t really answer the question, and committee chair Patty Murray (D-WA) took a swipe at Paul for his line of questioning. And the media (USA Today, here) was quick – even poised – to pounce in defense of the incompetent Levine.
Serious journalisming, there. Identity politics 1, competence 0. How predictable.
As a former Senate official and staff member, I’m ready to recommend that we simply terminate Senate committee confirmation hearings. Nominees are coached on how to avoid answering questions – even at the cost of appearing ignorant and uninformed. And the fact is that the Senators’ questions are more important – to them, anyway – than the answers.
It is also a fact that the most important part of the confirmation process is the individual meetings with Senators prior to a hearing, particularly with the members of the committees of jurisdiction. In some cases, nominees avail themselves of meetings with any Senator who wants one.
The confirmation process in the Senate is pretty thorough. The results of FBI background checks are made available to Senators (and some staff), on a confidential basis. At least three years of tax returns are provided to the committee, plus additional questionnaires. Aside from one-on-one meetings, there are series of back and forth questions and answers in writing (equally opaque, vague, and unilluminating). Then, of course, there is the public record, including one’s Twitter feed (just ask Neera Tanden). That’s how far we’ve descended. In more ways than one. Twitter posts now are the gold standard – or the make or break point – for presidential nominees. Beam me up, Scotty.
Having said that, it’s time to end, with rare exception, Senate committee confirmation hearings. Other than rare misstatements and mistakes, they produce no meaningful insights or information that contribute in any significant way towards the confirmation – or rejection – of presidential nominees. For any position. They are pure theater without the benefit of actual entertainment. They lack value. They are for show. They are a complete waste of time and rarely, if ever, influence any Senator’s vote, or public opinion.
Let’s be real. In most confirmation hearings, each Senator gets about five minutes of time to ask questions or pontificate (often the latter). They might get a second or third round. Ask any lawyer who has done depositions – how in the world do you develop a line of questions with answers of any value in five minutes? It’s an easy system to game if you’re the nominee.
The Senate could fix this, of course, by letting their lead counsels take the full time apportioned to Senators – say, 30 minutes or more – for serious questions devoid of theater. Of course, that will never happen.
The Senate can well perform its “advise and consent” role in all other ways. Carefully reviewing background checks. Individual one-on-one sessions with US Senators and key staff. But seriously, unless they’re willing to make major changes, dump the confirmation hearings. There are better, more education and more enlightening shows to watch.Published in