The Gotcha Question is a Waste of Time

The Gotcha Question is a Waste of Time

By Ted Kaufman - July 13, 2009

I must confess that I never dreamed I would hold elected office or be a United States Senator. Not even during my 19 years as Sen. Joe Biden's Chief of Staff.

My Chairman on the Judiciary Committee, Pat Leahy (D-VT), often calls senators "constitutional impediments" to their hard-working staff - a statement that gives any longtime staffer great pride. Staff spends countless hours drafting potential questions, examining cases, and analyzing the politics. In the end, however, only the senator asks the questions, faces the media, and ultimately casts the vote.

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On the eve of just the third Supreme Court confirmation hearing in 15 years, I find myself in a position for which I feel uniquely prepared but never possessed the desire to pursue. I'm now the Senator who is going to question a nominee; I'm the Senator with my own dedicated staff.

I had the pleasure of helping Joe Biden prepare for nearly a dozen Supreme Court nomination hearings, running the gamut from light skirmishes to all-out wars, including those for practically every member of the current Court.

During those battles, I can honestly say that I never once imagined myself being on the dais, always happy with the dim glow of the back row rather than the bright lights of the senator's chair. As we've prepared for today's start, though, I have found myself relishing the opportunity to use the lessons I've learned from over three decades of playing a supporting role in the Supreme Court nominations process.

1. Searching for and asking "gotcha" questions is a waste of everyone's time. One enduring consequence of the Bork hearings is that nominees no longer answer questions that "may come before the court." They get away with refusing to answer because in the committee hearing room, unlike a courtroom, there's no judge ready to compel an answer on pain of contempt. Every nominee, in other words, has a get-out-of-jail-free card.

As a result, searching for "The Question" is a two-fold waste of resources. It consumes far too much staff time - which I learned the hard way - and it provides no real payoff at the end. Senators and staff are far better off figuring out how to engage nominees, rather than pursuing a non-existent silver bullet.

2. The hearings, even for nominees confirmed in a landslide, are a critical part of this process. Our committee's Ranking Republican, Jeff Sessions (R-AL), was right on point last week when he said Supreme Court nomination hearings serve a valuable educational function. The Court's legitimacy is derived from the Constitution but depends on the faith of the American people. Even if there is not one new revelation in a Supreme Court hearing, the members of public must be given the opportunity to observe a nominee answer tough questions posed by their elected representatives.

3. Fairness is the pillar on which the Court, and therefore confirmations, must be built. All are equal in the eyes of the law; the powerful and powerless are supposed to look the same to the American justice system. If the people believe that the confirmation process is unfair, we risk their loss of faith in the Court, and in the rule of law. A single event during Justice Thomas' hearing drove that point home for me.

As committee senators and staff discussed how to handle the Anita Hill allegations, we all agreed on one central point: we had to protect her rights and his. Sen. Biden took great pains, and harsh criticism from both sides of the ideological spectrum, to keep the hearing fair to all. In Gallup polls just after the hearing, the public gave him high marks on fairness. That was our goal then and it should be today.

4. Three factors determine just how tough a fight a nominee will have. By and large, the answers to the following questions revealed how every nomination in my career would fare. Is the nominee clearly qualified for the role? Is the Senate controlled by the president's party (and how close is the split)? And is the nominee considered to be philosophically similar to the Justice he or she would replace?

The calculation for this nominee is simple: Judge Sotomayor's qualifications and competence are virtually unquestioned; President Obama's Democrats have a substantial majority in the Senate; and finally, Judge Sotomayor's long record is consistent, most believe, with the man she would replace, Justice Souter.

The high-voltage nominations I've experienced involved a nominee who failed at least one of the three criteria. Judge Bork would have changed the makeup and direction of the Court, a fact that President Reagan's aides discussed openly in the 1986 mid-term campaigns. (Democrats controlled the Senate, too.) Justice Thomas was a Republican nominee who was presented to a Democratic Senate. And Harriet Miers bowed out early after the Republicans who controlled the White House and the Senate considered her to be unqualified for the position.

I agree with most analysts that Judge Sotomayor's intellect and achievement, exemplary judicial record, and compelling personal story (along with the factors listed above) make her confirmation a near certainty. That does not diminish the importance of this week's proceedings.

This hearing will be educational, not just for what it reveals about this nominee but also for what suggests about the next. If the next nomination occurs in an environment where the factors above point to a much tougher fight, and I'm there to participate, the adjustment for me will be equal to the change from staffer to senator. In the world of Supreme Court nominations, there is an immeasurable difference between a relative skirmish and an all-out war.

In his farewell speech, my predecessor called being in the Senate "a rare and sacred opportunity." Those words have rung true for me every day for the past six months.

It's an honor as humbling as any, even more so because it is one I never sought. As I look over the microphones, through the lights, and past the cameras later today I will be treasuring my opportunity to play a role in this historic moment.

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Kaufman is a Democratic Senator from Delaware.

Ted Kaufman

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