Why hearings are a turn-off

Why hearings are a turn-off
By Christopher Caldwell
Published: January 28 2006 02:00 | Last updated: January 28 2006 02:00. Copyright by the Financial Times

On Tuesday, the Senate Judiciary Committee voted on partisan lines (10 Republicans for, eight Democrats against) to send the Supreme Court nomination of Samuel Alito, a federal appeals judge, to the full chamber. The final vote was expected to tip Republicans' way, since Democrats approached the weekend lacking the stomach to stall it. It is easy to see why. Democrats had tried, during hearings two weeks ago, to present Mr Alito as a dangerous believer in untrammelled presidential authority. Instead, they themselves became the focus, some as popinjays (Joseph Biden of Delaware soliloquised for most of his allotted half-hour question time) and some as cads (at one point on the third day of attacks, Mr Alito's wife burst into tears). After similarly misplaying the nomination of Chief Justice John Roberts last summer, Democrats have suffered more than a political defeat. The Alito hearings signal the exhaustion of a strategy that has served them well for three decades, both when they have been in public favour and when they have been out: the staged televised hearing.

The strategy has a long history. Hearings helped discredit Joseph McCarthy, the anti-communist senator, in the first half-decade of television. But what impressed Americans was McCarthy's scurrility, not TV's power to expose it. Only with the Watergate hearings of 1973 and 1974 was it revealed that live television worked a special magic on Americans' political imaginations. Democrats' landslide victories in the 1974 mid-term elections proved that a real-life narrative of good and evil was more compelling than any campaign advertisement. Thereafter, Democrats used hearings to devastating effect - sabotaging the Supreme Court nomination of the Yale law professor Robert Bork in 1987 and nearly defeating nominee Clarence Thomas in 1991 with a gothic campaign of sexual innuendo.

There were signs that the strategy had its limits. The first was the Iran-Contra hearings of 1987, which backfired, turning the designated arch-villain, Colonel Oliver North, into a national hero. The second came when Republicans, as cynically determined to turn TV to their advantage as Democrats, abused the system wholesale when they took power. Their congressional investigations of Bill Clinton's sexual habits rallied the US electorate to the president they were staged to doom.

These signs have been ignored. In April 2001, the Democrats reportedly devised a strategy for blocking Bush nominees by portraying them in hearings as dangerous radicals. It differs not a whit from the strategy they pursued two decades ago. The description by Edward Kennedy, senator, of Mr Alito's jurisprudence as "disturbing and even frightening" recycled his 1987 warning that "Robert Bork's America" would be one of segregated lunch counters and midnight raids. Such sallies cost Mr Kennedy more dearly than they did Mr Alito.

Why has this time-tested strategy started to yield negative results? Why is yesterday's vigilance today's partisan showboating? It is partly that the technological conditions which made hearings an effective tool - three national TV networks that felt a civic duty to show such spectacles in their entirety - no longer exist. There is no such thing as a national television audience in the US any more, save for a few sporting events and prime-time TV shows. The major networks felt no pressure to show good corporate citizenship by airing the Alito hearings, which were shown only (in parts) on cable.

Another part of the answer, at least regarding judicial hearings, is that the Democratic party has come to view the Supreme Court merely as a body that convenes occasionally to uphold the 1973 decision Roe v Wade, which declared that abortion could not be restricted. "If one is pro-choice in this day and age", said Dianne Feinstein, the California senator, last week, "one can't vote for Judge Alito." By her lights, she is right. Many senators focused, during the Alito hearings, on news stories about electronic surveillance in wartime. But otherwise abortion was the leitmotif. According to a tally compiled by the Washington Post, Mr Alito got 26 questions about race, 10 about women, eight about the handicapped and 100 on abortion. Like John Roberts before him, Mr Alito was pilloried for memoranda he had written about abortion during the Reagan administration.

This does not mean that Democrats are on the losing side of the abortion issue. When push comes to shove, most Americans feel as they do. The problem is that there are excellent reasons besides opposition to abortion to deplore Roe v Wade. US abortion customs depend not on a law but on the will of nine justices, so abortion rights always seem to be hanging by a thread. The only people happy with this arrangement are radical interest groups and lobbies of left and right. The unsettled state of abortion law allows them to raise money to hammer the next unsympathetic judge who faces hearings. Americans do not necessarily disagree with the conclusions of Roe v Wade, even if few can fathom its logic. But they are coming to suspect that it is part of a charade - and never is this suspicion more justified than during a Supreme Court hearing.

There is a false syllogism commonly voiced about the US. It holds that since (a) welfare states are the institutions most buffeted by globalisation, and since (b) the US does not have a particularly well-developed welfare state, then (c) lucky Americans are sheltered from the tumult of world change. The fiasco of each succeeding Supreme Court nomination - marked by over-ideological parties, an activist court, an irresponsible lobbying apparatus and a mass media on which politicians are too dependent - shows that this is false. The Alito hearings put on display an abundance of maladaptive US political institutions, tailored to the needs of the last century. They will need painful reform and will distort public life until they get it.

The writer is a senior editor at The Weekly Standard