Ilya Shapiro of the Cato Institute testified on 20 July 2021 before the Presidential Commission on the Supreme Court . He made the following major points:
- Politics has always been part of the confirmation process.
- Confirmation fights are now driven by judicial philosophy.
- Modern confirmations are different because the political culture is different.
- Hearings have become kabuki theater.
- Every nomination can have a big impact.
- The hardest confirmations are when there's a potential for a big shift.
- The Court rules on so many controversies that political battles are unavoidable.
The ever‐expanding size and scope of the federal government has increased the number and complexity of issues brought under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision‐making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.
So should we reform the confirmation process? I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose but now inflict greater cost than any informational benefit. With instantly searchable records that nominees now have, is there any need to subject them, and the country, to an inquisition? Or maybe senators could hold hearings in closed session.
In the end, all “reform” discussion boils down to re‐arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The judicial debates we’ve seen the last few decades were never really about the nominees themselves. They’re about the Court’s direction.
The reason we have these heated battles is that the federal government is making too many decisions for such a large, diverse, and pluralistic country. Let Congress decide truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.
Basically, the federal government is too damned big and presumptuously and injudiciously has taken on far too many powers, some of which should have been left at the state or local government levels. People who live in different parts of the country commonly have different interests and values. The many federal powers often conflict with these differing interests and values. The federal legislative branch has defaulted on making those constitutional decisions that were assigned to it, allowing the executive branch to grow into a behemoth administrative, regulatory state issuing many controversial edicts, often bafflingly formulated. As a result of the burgeoning administrative state, the Supreme Court has had make many more decisions regarding both "controversial social issues and complex policy disputes." Ignoring the wisdom of the Constitution sure has disastrous consequences!
You have done good work here Ilya Shapiro.