Venable litigation partner Seth Rosenthal was featured in the "In the Round" section of the October 2009 ABA Journal cover story examining alternative methods of conducting Supreme Court confirmation hearings.
The article lists proposals to change the tedious confirmation process, which, according to many, has lost site of its purpose: ascertaining the fitness of a particular nominee to become a high-ranking federal judge. Instead, observers see a process in steady deterioration. What could be a broad examination of a nominee's judicial philosophies and a view of what the person would do on the court has instead become a hunt for the offhand remark uttered out of class or for membership in a group with a sniff of political attitude.
Rosenthal suggests that, if there are going to be hearings, litigators should ask the questions and Senators can do the follow-up - similar to the way Congress conducted the Watergate and Iran-Contra hearings. According to the article, recent confirmation hearings have produced so little of substance about each justice's jurisprudential views, it may be time to re-pitch.
"Unlike good courtroom examinations, the existing process doesn't lend itself to fluid, information-producing conversations; rather, it lends itself to stilted questions, non-revealing answers and minimal or no follow-up," says Rosenthal.
Rosenthal outlined his proposal in a 2007 paper for the American Constitution Society. He allows that courtroom procedures are not perfect paths to truth, but they do elicit enough important information to allow judges and juries to decide cases. While trial lawyers might not fare any better at getting nominees to be forthcoming, he said, it's worth giving them a shot.
"The political reality is that hearings are here to stay, so the Senate should do its best to ensure they serve their ostensible educational purpose," Rosenthal says.