Tables turned, Breyer and Scalia quizzed as witnesses

WASHINGTON — It’s not every day a senator gets to quiz Supreme Court justices. Lindsey Graham of South Carolina asked about the corrosive effects of partisanship on judicial confirmations. Richard Blumenthal of Connecticut pushed for the high court’s oral arguments to be televised. Sen. Dick Durbin of Illinois asked about tougher judicial ethics rules.

The scene was a highly unusual Senate Judiciary Committee hearing Wednesday, featuring two of the current Supreme Court’s sitting justices, Antonin Scalia and Stephen Breyer. After their confirmations, Supreme Court justices rarely return to testify before that committee.

But Scalia and Breyer agreed to participate in a session that delved into a wide range of political, practical and philosophical questions about the U.S. judicial system.

Breyer Scalia

The witnesses: Justices Stephen Breyer, Antonin Scalia.

The hearing came just as the Supreme Court’s kicks off its 2011-2012 term, when the justices are expected to tackle a bevy of contentious issues, from the constitutionality of health care reform to the validity of tough state immigration laws.

Blumenthal used his few minutes of questioning time to ask about allowing cameras in federal courtrooms, including the high court’s. But first he noted that he’d argued before the Supreme Court as Connecticut’s attorney general, moments that he said were the “highlight” of his two decades in that job.

“So,” he joked, “I’ve been waiting for the day when I could interrupt you as mercilessly and give you as hard a time” as he got during those arguments.

“Payback,” Scalia quipped.

On a more serious note, Blumenthal, who also served as a Supreme Court clerk in 1974 to then-Justice Harry Blackmun, suggested that allowing cameras in the federal courts could help address some of the misperceptions the public now has about the judicial system.

“Why not give the public the benefit of seeing it first hand in your court and other federal courts–and appreciate the quality and diversity and the sometimes excruciating difficulty of what you do?” he asked.

Scalia said that when he first joined the court, he was in favor of allowing televised proceedings. But he’s since grown skeptical. “If I really thought the American people would get educated, I’d be all for it,” he said. “If they sat through days of our proceedings gavel to gavel,” that would be great.

But the vast majority of people would probably only see “a 30-second takeout,” he said, “which I guarantee you would not be representative of what we do.” It would end up giving more of a “misimpression” than an education, he argued.

Besides, Scalia noted that there are audio tapes available and suggested those should be “good enough.”

Blumenthal said the tapes didn’t convey the intense action and high drama of the court, to which Scalia responded: “We just sit there like sticks on chairs. There’s not a whole lot of visual motion.”

Breyer signaled more openness to the idea, but he said it raises a host of questions, including how to protect the identity of jurors and criminal witnesses in federal trials. And he said there’s a deep reticence about making a change that could end up damaging the Supreme Court’s public standing.

“We’re there for a short time. And we’re trustees,” he said. “Until we become convinced it won’t hurt the institution, you’re going to get a conservative reaction.”

The two justices also expressed a reluctance to adopt tougher and more transparent ethical and recusal standards, saying the current code they followed was plenty robust. That’s an issue that Rep. Chris Murphy, D-5th District, and other House Democrats have pressed to little avail so far.

Breyer noted that the justices currently have to fill out detailed financial disclosure forms, “where every penny that I take in or my wife or my minor children… has to be listed.”

He said that on the lower federal courts, when a judge recuses himself from a case, another judge can step in to take his place. But on the Supreme Court, there are no backups.

“That could change the result,” he said, a reference to the court’s numerous 5-to-4 rulings. “What that means is there’s an obligation to sit… as well as an obligation to recuse,” he said. And that call, he added, is best left to each justice.

The senators and justices alike steered clear of any discussion about current cases on the court’s docket.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., billed the hearing as a “civic minded conversation about the role of judges under our Constitution.”

And indeed, the 2 1/2 hour session was part law school seminar and part political debate, with much of the back-and-forth focused on the current public disgust with the federal government. Breyer said one of the reasons he agreed to testify Wednesday was that he saw it as an opportunity to educate the public about the Supreme Court and brush away some of the public disaffection.

“There’s a lot of skepticism and cynicism about government in the United States and probably some of that is justified, but if there’s too much of that the government just won’t work,” Breyer said. Of the Supreme Court, he added, “We’re unelected, doing unpopular things and quite possibly wrong. Why should you ever give us our support?”

He and Scalia tried over the course of the hearing to answer that question and explain the public’s distrust of various government institutions, whether the court or Congress. Scalia lamented the wide-spread ignorance among Americans of the U.S. Constitution in particular and said if people understood it better, they would come to value the political paralysis that often grips Washington.

“The real guarantee to the distinctiveness of America is the structure of our government,” Scalia said. One element of that is the independence of the judicial branch, but just as important are the two co-equal branches of the legislature.

“It doesn’t take much to throw a monkey wrench into this complex system,” Scalia said. But “it’s there for a reason–so the legislation that gets out is good legislation.”

Right now, Americans “look at this and say ‘This is gridlock,’ ” Scalia said. “They talk about a dysfunctional government, because there’s disagreement, and the Framers would have said ‘Yes, that’s exactly the way we set it up. We want this power to be contradicting power.’ “

Americans need to “learn to love the separation of powers,” he added, “which means learning to love the gridlock.”

Leahy asked whether the public’s confidence in the system is shaken when judges overturn longstanding legal precedent, unraveling laws that they’ve “relied on for generations… What does that do to public confidence and the rule of law?”

Breyer said there was “no definite answer” to that question, noting that sometimes it was clearly right to overturn precedent, as the court did in the landmark desegregation case Brown v. Board of Education. But he said courts should tread carefully when altering the legal landscape, with a mantra of “don’t decide too much too fast.”

Both justices downplayed the influence of political views in the judicial process. Breyer said that in his 17 years on the court, he has never seen politics enter into a judge’s decision. But he said a judge’s general outlook and life experience often influences his or her decisions.

“There’s no way that those different outlooks can fail to influence them,” he said. “Is that a bad thing? No… It’s a good thing that people’s outlook on the court is not always the same.”

Graham, the Republican of South Carolina, asked whether the judicial confirmation process has become too partisan, noting that Senate votes are increasingly divided along party lines on high-profile nominees. He asked if the increasing politicization of the confirmation process would have a “chilling effect” on recruiting top-flight candidates for the federal bench.

“It’s had that affect already,” Scalia responded. “My view is federal judges ain’t what they used to be.”

Should a senator should vote against a nominee because he disagrees with that candidate’s perceived philosophical or political views? Graham asked.

“I have views on that, but I don’t think it’s appropriate for me” to voice them, Scalia said. “I leave you alone, and you generally leave me alone.”