Question: Building on the last question, and given where we are, it seems that the formula for any nominee to the Supreme Court who hopes to be confirmed is simple. Be evasive yet engaging. Let long-winded senators steal your time. Appear sophisticated, yet avoid controversy or complexity. Deliver soundbites instead of professorial gradations. And be sure to appear groomed, well-suited and TV-friendly.
Will we ever see an end to this in our lifetimes? If so, how? If not, why shouldn’t senators be even bolder in countering such “Kabuki dances,” as you label them?
Shapiro: Indeed, successful nominees talk a lot without saying much. Ruth Bader Ginsburg refined that tactic into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the court, and then refusing to discuss general principles because “a judge could deal in specifics only.”
Around the same time, Elena Kagan wrote a law review article criticizing judicial nominees for being too cagey. But when she sat in the hot seat herself, she realized why they did so: There’s no incentive to be more forthright and thus open yourself to attack, and every incentive just to demonstrate deep knowledge and an easygoing manner.
So no, I don’t see a change possible, particularly when senators themselves have an incentive to collect clips of gotcha questioning for reelection or presidential campaigns, as we saw with Sens. Cory Booker (D-N.J.) and Kamala Harris (D-Calif.) at the Kavanaugh hearings. I mean, Sen. Josh Hawley (R-Mo.) can declare that he won’t vote for anyone who doesn’t explicitly come out against Roe v. Wade, but that seems like shooting yourself in the foot barring a huge Republican majority that can afford to lose moderate votes.