Watching the confirmation hearing of Judge Stephen G. Breyer before the Senate Judiciary Committee is akin to watching an Old Timers’ baseball game, or a windy good-government seminar on a hotel mezzanine.
The props and the protocols remain inside the committee room, but the heart has gone out of the Supreme Court confirmation process.
Sure, it’s important. But the stirring battles of the 1980s over abortion, the death penalty and “Robert Bork’s America” are mostly a memory. The thrill is gone, court watchers.
What survives, of course, is the institutional arrogance of the senators and the imperious presence of the able nominee, always a prince or princess of jurisprudence.
The Senate committee, beaten down by time and the Anita Hill-Clarence Thomas melodrama, appears composed of men (and two women) whose suits are as empty as ever.
Sen. Joseph Biden (D-Del.), the panel’s chairman, dithers on like some manic maitre’d, never tiring of the sound of his own voice or his limp attempts at collegiality.
Everyone else remains in character. Sen. Ted Kennedy (D-Mass.) looks dense and uncomfortable as he champions his friend Breyer. Sen. Orrin Hatch (R-Utah) is a study in Mountain Time Zone smugness, a self-satisfied posture he shares with Sen. Alan Simpson (R-Wyo.).
Sen. Howell Heflin (D-Ala.) impersonates a character from the comic strip “Shoe,” while Sen. Strom Thurmond (R-S.C.) waits for his staff to hand him another question to read verbatim to the nominee.
Even salty Sen. Howard Metzenbaum (D-Ohio), who used his Judiciary seat to fight a wide range of ideological scuffles in the 1980s, appears to be going through the motions.
Metzenbaum, who retires this year, prefaces his questions with soft assurances that he indeed will support the distinguished nominee when it’s time to vote.
The old days, as they say, are gone forever.
In the ’80s, the Senate Judiciary Committee functioned as a kind of liberal government-in-exile.
Led by the once-indefatigable Kennedy, the panel and its attendant interest groups (civil rights, abortion rights, environmentalists) rose up whenever Presidents Ronald Reagan or George Bush sent a Robert Bork or an Antonin Scalia or a Clarence Thomas to Capitol Hill.
The liberals lost more often than they won, but the sparring provided rare moments of counterpoint to the seamless right-wing triumphs of the Reagan years.
In ways the founders never anticipated, Kennedy and his colleagues used the confirmation process to affirm Democratic Party principles, while Reagan and Bush packed the court with zealots who never stopped decrying the “judicial activism” of others.
They were passion plays offered at full volume, and thus were compelling theater.
Now there’s a Democrat in the White House, and a Democrat who appears determined to send a stream of ever-so-slightly-left-of-center pragamists to the court.
President Clinton’s nominees, Breyer and Justice Ruth Bader Ginsburg, delight the bar associations and most Republicans on the Judiciary Committee. As jurists, they pride themselves on sweet reasonableness and bipartisan comity.
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But citizens who reveled in the fall of Robert Bork and the travails of Clarence Thomas are not enthralled with the corporate-friendly likes of Stephen Breyer, even if he is from Massachusetts.
In the recesses of their left-wing souls, they long for mouthy liberal nominees who would chill the bones of Hatch.
They pine for a McGovernite nominee who would gleefully align himself or herself with the sensibilities of Earl Warren’s Supreme Court, a nominee who would keep conservatives up nights.
Yes, that nominee would be New York Gov. Mario Cuomo.
But the Reluctant One has opted to pursue a fourth term in Albany, and Clinton doesn’t have the courage or the political capital to send that sort of message.
So we are left with this arid exercise in which senators pretend to ask questions and Breyer pretends to answer them, unless he won’t.
It’s the hearing room equivalent of a scoreless tie in soccer, a puppet show with a script typed in advance.
Still, the trappings manage to lure a crowd. The nation’s taxpayer-funded broadcast outlets, PBS and National Public Radio, stay riveted by the confirmation process.
Analysts score the questions offered by the panel members, and PBS commentators wonder aloud if senators will demand the dreaded “second round” of questioning.
Some folks never get the message.