"Sad Kabuki Theater"

That's how one Democrat describes the Senate confirmation process:

Sen. Evan Bayh (D-Ind.) took a shot Tuesday at the confirmation process for Supreme Court nominees, calling it a "sad kabuki theater."

In an appearance on MSNBC, Bayh was asked if he agreed with a 1995 piece by court nominee Elena Kagan in which she called confirmation hearings a "vapid and hollow charade."

"Absolutely Joe," the centrist senator said. "You get these very erudite people coming before Congress saying as little as possible in very intelligent-sounding phrases. It's really kind of a sad kabuki theater but that's what it's evolved into."

Kagan's comments are likely to come up during her hearing; lawmakers may use them to see if she will take the process seriously.

During her hearing last year to be confirmed as solicitor general, Kagan backed down slightly from her remarks, saying she was "frustrated" as a staff lawyer on the Senate Judiciary Committee during the confirmation hearing of Justice Ruth Bader Ginsburg.

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce," Kagan wrote.

Did you realize that until the age of television confirmation hearings rarely made any news at all and in some cases the nominees refused to appear. Another article I found gives some background on how the whole process has become so political:

Because the process involves two political branches—the president to nominate and the Senate to give “advice and consent” (or reject)—it naturally leads to tension.

“One thing to remember is how the founders designed it,” says Stras. “It was supposed to be a robust look at the integrity and judicial philosophy of the nominees.” The Senate has shot down a number of presidential nominations since 1795, when it rejected John Rutledge for his opposition to the Jay Treaty.

But the 20th century changed the program, and Stras cites three seminal events:

• The 17th Amendment, adopted in 1913, after which senators were elected directly and made re­sponsive to the citizenry rather than to the state leg­islature.

• Television, which broadcasts how the sausage is made.

• And the court under Chief Justice Earl Warren, with its gale-force revolution in constitutional law, changing the court’s focus from property rights to civil and personal rights.

“It is only since Brown [v. Board of Education in 1954] that the court has become a prize worth spend­ing immense political capital to win,” writes Carter. “When a new justice is selected, what hangs in the balance, rather, is the list of rights to be protected or unprotected.”

The combination has made the process more political, ideological, visible and combustible.

Nominees are put in a tough spot. The Senate panel wants to find out about their thoughts on the key issues of the day, but the nominees don't want to make comments that might preview how they'd rule on pending cases. The whole thing then devolves into Senators trying to trick nominees into detailed responses, and nominees trying to speak without actually saying anything.

I doubt that will change with the Kagan hearings.