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LaForge: Nominee’s Image Will Be Set by Senate Panel

Much is being written and reported about a successor to Justice John Paul Stevens. Beyond all the hype and drama associated with the president’s selection of a nominee and the media’s commentary about every conceivable factor involving potential candidates, what will stand out as the center of activity in the weeks and months ahead is the constitutional concept of “advice and consent,” especially the confirmation process and committee hearings that will soon commence on Capitol Hill.

[IMGCAP(1)]At the heart of this crucial confirmation process will be the Senate Judiciary Committee hearings that are certain to extend for many days, to be followed, if the nomination is reported out of committee, by an up-or-down vote by the full Senate. These committee hearings will likely be scheduled soon after the president announces his nominee. The Senate hearings will be the key to bringing information into the public domain for consideration by the Judiciary Committee and the full Senate. Committee witnesses will include President Barack Obama’s nominee plus others who are in a position to provide information about the nominee’s background, credentials, qualifications, judicial temperament, character and general fitness for service.

Most of the actual confirmation process drama will be played out in the context of these very public Senate confirmation hearings. All eyes and ears will focus on the nominee and on the 19 members — 12 Democrats and seven Republicans — of the Senate Judiciary Committee.

It is during these Senate hearings that lawmakers, the media and the public will have the opportunity to see and hear the nominee testify before those who will decide his or her fate. The American viewing public will see gavel-to-gavel television coverage of Senators making speeches about judicial restraint and the rule of law, the nominee delivering a formal statement to the committee laying out the case for his or her confirmation, and committee members grilling the nominee on the nuances of constitutional law and probing for clues to the candidate’s judicial philosophy during the question-and-answer portion of the hearings. The nominee’s performance and the committee’s, media’s and public’s responses to it will create a real-time proving ground for the candidate, a composite image of the nominee for all to see and a battleground for the certain political tug-of-war between Democrats and Republicans over the nomination.

The drama and stakes of the Senate’s Supreme Court hearings, especially in an election year, will be extraordinarily high. Proffered for public consumption will be themes such as Senators’ judicial qualification preferences, criteria and standards for court service, profiles of the ideal federal jurist, measurements of the candidate’s experience, various ideological perspectives of both political parties, and individual judgments by those who will ultimately vote for or against the candidate, first in committee, and then on the floor of the Senate.

Confirmation hearings have often proved to be pivotal points for judicial nominees. With the candidate’s testimony, answers to questions and personal demeanor all on display for the world to see, hearings can reveal a great deal about judicial nominees beyond their legal experience and qualifications to serve in the federal judiciary, and they help shape the attitudes of Senators toward the nominee, even if the hearings per se may not change minds that are predisposed to support or oppose the nomination.

During his confirmation hearings in 2005, Chief Justice John Roberts came across as a superbly prepared judicial candidate, answered questions respectfully and projected confidence tempered with modesty and restraint. His hearings are considered a model for an appearance by a judicial candidate. In contrast, Judge Robert Bork, a controversial conservative who was denied a Supreme Court seat by the Senate in 1987, notoriously diminished his own chances for confirmation because of his real or perceived arrogance and the way in which he engaged with the committee panel during his Senate hearings. The Bork confirmation hearings took on the characteristics of a battleground for an extremely partisan fight.

Senate confirmation hearings for federal judicial candidates are a serious matter, and they can have dire and lasting results. The Senate’s ultimate judgment of the president’s nominee to replace Justice Stevens will depend primarily on the Senate confirmation process and its results. The frontline action in that process will be the Senate confirmation hearings, and they are certain to produce some fascinating drama en route to confirming the next Supreme Court justice. Stay tuned!

Bill LaForge is a lawyer/lobbyist with the Winstead law firm in Washington, D.C., and author of a new book, “Testifying Before Congress,” published by TheCapitol.Net and scheduled for release in mid-2010.

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