Hearing loss

NEAR THE END of the confirmation hearings for Supreme Court nominee Samuel A. Alito Jr., a frustrated Senator Joe Biden appeared on NBC's ''Today Show" to criticize both the nominee, for repeatedly ducking questions about abortion, and his fellow senators for letting Alito get away with such evasion.

Something was wrong, Biden suggested, when the predictable exchange of questions from members of the Senate Judiciary Committee-of which the Delaware Democrat is a senior member-and artful nonanswers from Alito passed as a hearing for a seat on the nation's highest court. ''The system," Biden said, ''is kind of broken."

With Alito's nomination moving toward a final vote on the Senate floor next week, where he is expected to win confirmation, many Democrats and liberal groups have expressed similar frustrations with the process. Biden told Newsweek in a recent interview that he was planning to convene a group of constitutional scholars after the vote to rethink whether committee hearings, long the televised climax of the confirmation process, still serve any useful purpose.

Like Chief Justice John Roberts, who was confirmed last year despite evading questions about abortion, Alito argued that answering specific questions about issues the court might consider would be inappropriate, an argument that some senators have accepted and that also has the backing of some legal scholars.

But Biden's notion of scrapping the hearings altogether received a warm welcome from other legal scholars, who say that future hearings are unlikely to accomplish much now that a precedent has been firmly established allowing nominees to skirt questioning about hot-button issues.

''I thought it was the first sensible thing Biden had said all week," said Stephen Bainbridge, a law professor at the University of California at Los Angeles. ''Anybody who watched the hearing would conclude that the confirmation process is badly broken."

''They have become literally a charade," said Peter Irons, a professor emeritus of political science at the University of California at San Diego and author of ''A People's History of the Supreme Court." ''It's a meaningless exercise."

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The idea of getting rid of the confirmation hearings isn't as radical as it may sound. The Senate Judiciary Committee only began holding hearings for Supreme Court nominees in the wake of the Teapot Dome Scandal, when a Democratic senator from Montana raised questions about the ethics of Attorney General Harlan Fiske Stone, who had been nominated to the high court in 1925 by President Coolidge.

For the next 60 years, however-until the 1987 nomination of Robert Bork-most nominees sailed through their hearings and were confirmed. Senators in the 19th century, said Richard Davis, a political science professor at Brigham Young University and author of ''Electing Justice: Fixing the Supreme Court Nomination Process," were less deferential to presidents than their counterparts today. Indeed, the Senate rejected candidates more often before 1925 than after, often in raucously political proceedings. Twenty-two nominees were rejected or forced to withdraw before hearings became a staple of the confirmation process, compared to eight after.

''Over the last century, there's been a presumption that the president's nominee is confirmed, because the president is the president," Davis said. ''I think that has hurt the Senate's power of advice and consent."

Bainbridge seems to agree, saying the hearings have become ''a formality." What's more, in the post-Bork era, they've become a highly publicized formality, which Bainbridge believes compounds the problem.

''It used to be a rubber stamp, now it's political theater," Bainbridge said.

Davis noted that the bombastic performances by senators at the Alito hearings created an ''illusion" that the hearings accomplished more than they really did, when in fact all the hearings demonstrated was Alito's ability to stick to talking points scripted by the White House.

''What it showed us is that the White House could coach him well, and that he could be well-coached," Davis said. ''White Houses have come to the conclusion that we're not going to be honest, because it's only going to hurt us to do that."

Still, Richard Fallon, a Harvard Law School professor, said the committee hearings, even if they are largely stagecraft, serve a purpose. Citing the candidacy of White House Counsel Harriet Miers, who withdrew last fall before her hearings began, he said that the hearings help keep weak candidates off the court. ''I think one of the reasons Miers dropped out was a concern that she couldn't stand up to this kind of questioning," Fallon said.

But Bainbridge said that senators may have learned the wrong lesson from the early 20th-century nomination battles. Instead of holding hearings for every candidate, he said, hearings should be reserved for the rare instances in which serious problems arise with a nominee.

''Perhaps it should have been seen as a precedent for only having hearings when there are significant ethical questions to look into," he said, while relying on the written record for other nominees.

Alito's opposition to abortion as stated in his writings stands in contrast to his relatively anodyne responses at his hearings. Focusing on the written record, and not giving nominees a stage to soft-pedal controversial views, may be what Biden hopes for in a new process-at least until it's his party doing the nominating.

Alan Wirzbicki is a writer living in Washington.