The Sotomayor Hearings Were Hardly Oversight

One of Congress's most important oversight roles is thoroughly to examine presidential nominees who will be making U.S. policy. This includes Supreme Court nominees, and on this score, says former Congressman Lee Hamilton, "The Sotomayor Hearings Were Hardly 'Oversight.'"

Over four days of hearings into the nomination of Judge Sonia Sotomayor to the Supreme Court, the members of the Senate Judiciary Committee asked her 583 questions. Yet when they were done, we knew little more of importance than we did at the beginning.

To be sure, everyone did his or her job. Senators asked good questions about weighty issues facing this country, from gun rights to how far the executive branch can go in terrorism surveillance. Judge Sotomayor herself laid out the complex history and reasoning behind some notable Supreme Court decisions. Everything went smoothly, there were no headline-grabbing catastrophes, the Obama administration was pleased — in short, for the political establishment these were successful hearings.

Yet I found them singularly unsatisfying, and for a simple reason: despite senators' obvious preparation and repeated attempts to learn more about Judge Sotomayor's views, they failed to illuminate the things we really need to know about her.

This was in no small part due to Judge Sotomayor's masterful adherence to a formula perfected by several nominees before her, including Chief Justice John Roberts and Associate Justices Samuel Alioto and Ruth Bader Ginsburg. It is an approach designed to advance an agenda shared by the nominee and the White House — to get confirmed with a minimum of fuss. It includes:
— avoiding direct responses to questions on legal issues while showing a firm command of the considerations involved;
— carefully articulating relevant precedent while declining to reveal how one feels about it;
— taking care to be unflappable and polite, answering each senator as if his or her question were the most important of the hearing;
— and claiming the high road of not answering abstract or hypothetical questions while construing as many questions as possible as falling into this category.

Above all, Judge Sotomayor — like any number of nominees before her — adhered to two myths that senators have historically been reluctant to puncture.

The first is that judges do not legislate from the bench. The truth is, judges of all persuasions do this all the time. When the law is not clear — and as a former member of Congress, I can tell you that a lot of legislation is not clear, because one of the ways Congress reaches consensus is by leaving language ambiguous — then a judge has to decide what it means. And that's making law.

The second myth was repeatedly cited by Judge Sotomayor. Intensely aware of the tricky partisan politics around her years-old "wise Latina" remark, she maintained that judges should not exercise personal discretion in deciding cases, only the precedent of the law. Yet judging is a complex process, and smart people apply the law differently based on their own experience and opinions. In other words, they use personal discretion. If they didn't, then every decision facing the Court would be decided 9-0.

Because the Senate Judiciary Committee was unable to break through these polite pretenses, the American people came away from the Sotomayor hearings with little idea of what kind of justice she will be, and in particular with few indications of how she would rule.

This makes little sense. The Supreme Court, whatever the official mythology, is one of the prime policy-making bodies in Washington; it makes law with every case it decides. As citizens of a democratic government, are we not entitled to know more about how a Justice Sotomayor would think about the cases before her?

To be sure, on questions she might be called upon to decide in short order, there might be legitimate cause to decline to answer questions. But that right should be exercised narrowly. On the whole, Americans would have been far better served had we been able to learn her positions on abortion, executive versus legislative power, gun rights, privacy, and a raft of other issues.

That, after all, is what legislative oversight is about, and it is why I am critical of the Senate's current process for deciding on a Supreme Court nomination. We need to know as much as possible about the people who will fill this vitally important role in the nation's policy-making apparatus. It is Congress's responsibility, as the arm of the federal government closest to the American people, to ensure that we do.

Instead, by allowing itself to be persuaded by the politically expedient argument that justice is blind, the Senate has merely ensured that up to the moment a new justice actually puts on the robes of the highest court in the land, the American people will be, too.

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The Private Lives of Public Officials

Looking at recent revelations about the private misconduct of a series of public officials, you might ask what the public response ought to be. Former Congressman Lee Hamilton says that when it comes to the private lives of public officials, that decision is up to each of us individually.

As happens every so often, we have recently been through a spate of embarrassing reports about the lives of prominent public officials. Adulterous affairs by Nevada Senator John Ensign, South Carolina Governor Mark Sanford, and former presidential candidate John Edwards, entanglements in prostitution by Louisiana Senator David Vitter and former New York Governor Eliot Spitzer — these are just the latest in a long line of dismaying revelations about people in whom the American voters once put their trust.

Celebrities often disappoint. Baseball players use steroids; track stars and internationally known bicyclists enhance their performance with chemicals; entertainers slip into alcohol- or drug-induced misbehavior; ministers run away with their choir directors.

Politicians are no different, with actions that raise issues about their judgment, self-control, and basic integrity. They are public figures, but they are also all too human, with all the strengths and flaws that attach to the human condition.

The question, of course, is what do we do when their private lives go off the rails? And the answer, I'm afraid, is that there is no answer: Each of us can only respond according to his or her own lights.

I still remember, for instance, a single day in the midst of the Monica Lewinsky scandal that beset the presidency of Bill Clinton. Two constituents of mine, both strong Clinton supporters, spoke publicly about their reactions. One commented that he still believed Clinton was a strong and effective president, whatever his personal behavior. The other declared that he was appalled by the whole affair and could never bring himself to support Clinton again. Both were intensely personal reactions.

Because there are no set rules when it comes to this sort of thing, there is also little consistency when it comes to the long-term results. Some politicians' careers have been undone or badly sidetracked — think of Spitzer, Edwards, or former New Jersey Governor James McGreevey — while others have suffered uncomplimentary attention for a few weeks and then picked up their careers where they left off.

In the end, a politician's fate often rests in the hands of the voters, who must use their own judgment about that politician's values, performance, and abilities. Voters tend to prefer politicians who share their values and signal that they'd make similar choices on ideological issues — indeed, the question of how much weight to place on character issues often depends on whether or not we agree on a politician's positions.

But if voters see hypocrisy — behavior that the politician in question would have been quick to condemn in others — they are less likely to be tolerant, and can be merciless.

There is another question that has to come up in such cases, and that is whether the misbehavior is truly personal, or instead threatens to bring discredit to the institution in which the politician serves. This is illustrated in the House of Representatives, where the official name of the committee overseeing members' behavior is not — despite its wide use — the "House Ethics Committee," but rather the House Standards of Official Conduct Committee. Its focus is less on ethical misconduct in general than on actions that relate to official conduct and that might undermine the integrity of the institution or affect a member's performance of his or her official duties.

A House member's extra-marital affair with a neighbor, for instance, would probably not lead to any formal committee involvement — in that case, the House would leave questions of punishment up to the voters back home. But a member's affair with a lobbyist, or with a paid member of the staff — and certainly with a congressional page — would lead to a much tougher look by the committee and the House as a whole. In some cases, important questions need to be investigated and answered: Was public money involved? Did a politician abuse his or her position of power? Were any laws broken?

This means that sometimes — rarely to be sure — the House or Senate takes action to remove the member from Congress. Yet other times he may leave because of actions taken by the courts. And sometimes he decides to resign from office midterm or not run for re-election.

Yet often the decision is left up to the voter, and in that case each of us will have to make our own judgments. We may be disappointed when a political leader's personal vulnerabilities or weaknesses come to light, but how that affects our willingness to support him or her is a deeply personal decision.

As voters, we're asked all the time to make decisions about politicians based on incomplete or insufficient information. When an elected official misbehaves, all we can do is to make the best decision we can, rooted in what we know about the case and our own personal reaction.

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Congress Needs To Embrace Transparency

Secrecy in government breeds cynicism. That is why, former Congressman Lee Hamilton says, "Congress Needs to Embrace Transparency."

The word "transparency" has been much in vogue on Capitol Hill lately. The stimulus package contained unprecedented requirements for tracking where and how federal dollars are spent. Some members of Congress have openly been pushing the National Security Agency to account for its surveillance of U.S. citizens' emails. President Obama's plans for revamping financial regulation have brought renewed calls for greater openness on the part of the Federal Reserve, one of the most habitually opaque institutions in Washington.

These are refreshing developments. A big part of Congress' role in our democracy is to ensure that the executive branch carries out its responsibilities to the American people in plain sight — or, at least, as openly as the demands of national security permit.

The presumption in a free society is that government will operate in the light of day, allowing its actions to be gauged and assessed, and its decision-makers to be held accountable to the American people. There are limits, of course, especially when it comes to national security, but secrecy is too often used as an excuse to cloak positions that politicians don't want to reveal, or mistakes that bureaucrats would rather cover up, or simply to avoid accountability for actions that wouldn't stand up to public scrutiny.

I don't mean to suggest that transparency is always called for, but the institutions of our government function better when they do so visibly, rather than in the shadows.

This goes especially for Congress. On the whole, it has a better record of openness than the executive branch, but it's "the people's branch" — it ought to do better. Over the last few decades it has made some significant strides on this score: putting television cameras in the House and Senate chambers and in committee hearings; requiring recorded votes both on the floor and in committee; opening up conference committees; moving — at least in the House of Representatives — to make campaign filings more easily available, and requiring more information from lobbyists.

All of this makes legislators more accountable to the people who elect them and more accessible to the various stakeholders who will be affected by legislation.

Yet openness in Congress is a work in progress, not a done deal. Increasingly, for instance, important legislation is being put together by just a few leading members, sometimes without amendments or full-on debate being allowed. The drive to open conference committees has had the unforeseen side effect of making them less important — the leadership of both houses often cooperates, now, to sidestep them so that deals can be struck in private.

While the 110th Congress took the important step of making individual members' responsibility for particular earmarks more transparent, it is still too hard to find out whether officers of companies benefiting from those earmarks made campaign contributions to the members who sponsored them.

And although Congress has tried to strengthen the disclosures required of lobbyists, it has been less assertive about enforcing them — according to a recent report by the U.S. Government Accountability Office, a sample group of lobbyists failed to document fully their activities in more than half the disclosure reports they filed, as required by law.

While secrecy breeds problems for government as a whole, I believe it is especially problematic for Congress. It makes ordinary Americans more cynical, limits the access of stakeholders, and permits members to avoid accountability for their actions and cut corners they shouldn't cut. In other words, it creates both political problems for Congress — as measured by lack of trust in the institution — and makes legislation less responsive than it would be if it were openly created and debated.

As a member of Congress, I often encountered a troubling lack of confidence in the American people on the part of both executive-branch officials and my congressional colleagues. They believed that it was fine for them to know things that most Americans didn't. If I've heard it once, I've heard it a thousand times: "Trust me; I know." This is fine for troop movements, but in most cases I believe they underestimated the sophistication and good judgment of the American people. "Let the people know the facts, and the country will be safe," Abraham Lincoln once said.

And while I thoroughly agree with him, I would add one point: If it is the responsibility of Congress and the White House to hold themselves to high standards of transparency, it is equally the responsibility of voters and media to demand openness and accountability of their government.

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Why Congress Needs Institutionalists

In these politicized times, it's getting harder to find members of Congress who put the interests of the institution they serve first Former Congressman Lee Hamilton says this is troubling, and explains "Why Congress Needs Institutionalists."

It takes all kinds of people to make the U.S. Congress work. The ambitious and the laid-back, loners and consensus-builders, partisans and aisle-crossers — all have their place. In these highly politicized times, though, there's one type who is particularly valuable: the institutionalist.

This means pretty much what it sounds like: a member who puts the institution of Congress first. Who welcomes responsibility for making it work; who pushes his or her colleagues to fulfill their constitutional obligations; who respects the role and history of Congress in forging this country's history.

Institutionalists generally tend to be more senior members of Congress, whose years on Capitol Hill not only give them an appreciation for the accomplishments of the legislators who came before them, but also help them put in perspective all the other considerations that compete for a younger member's attention, like partisanship, power, relations with the White House, and the regular task of getting re-elected.

For what an institutionalist values above all else is the role that Congress plays in making our representative democracy viable. It should not be merely a body of elected officials, each pursuing his or her own goals or banding together to advance one political party's interests. Rather, Congress has a set of responsibilities laid out in the Constitution and developed over the 220 years of its existence that enable it to serve as the place where the American people come closest to touching their national government.

To do what's required of it, Congress must function as a deliberative and democratic body; work as both a partner and a critic of the presidency; protect itself against inevitable pressure from the White House to let the President set the agenda in all things; and engage constantly in the search for remedies to the challenges that beset our country. These things don't just happen on their own. They require members of Congress to tend to the body in which they serve.

All too often, though, both incumbents and challengers these days run against the Congress, taking delight in criticizing it and hoping to make themselves look good as a result; this public disdain for the institution makes it much harder to play a constructive role in building on what's right about the place.

The traditions of Congress — rules about how legislation should be handled, how debate takes place, how controversy gets channeled through layers of committees so a productive conversation can take place — evolved because of a simple insight: democracy is a process, not the most expeditious means to a result. Congressional conventions embody certain values, such as fairness, the importance of deliberation, and a bedrock concern for building consensus instead of riding roughshod over the concerns of the minority or throwing wrenches into the plans of the majority.

Fairness and deliberation and consensus-seeking have not been noticeable priorities in Congress of late. Over the last couple of decades, concern for how Congress functions as an institution has increasingly taken a back seat to other priorities: party-building, fundraising, the centralization of power in the leadership's hands, making certain that members can take four days every week to get home and campaign. This has all taken a visible toll on relations among members of Congress, and it has also diminished the institution itself. It has become less fair, less deliberative, and — with some exceptions — less concerned with finding consensus among its diverse parts.

This is why it is so crucial that there be members of Congress whose chief goal is to strengthen it. Anyone with an appreciation for the accomplishments of Congresses past — from the GI Bill to the creation of the land-grant colleges to the interstate highway system to Medicare, Medicaid and the civil rights legislation of the 1960s — can't help but see value in an institution capable of making this a better nation.

Institutionalists in Congress are often seen by their peers as slightly quirky nags, consumed with the trifles of process or precedent while the more important work of fighting against the opposition or slamming legislation through at all costs goes ahead. But of course, they've got it backward. It's the institutionalists who have the nation's best interests at heart, because they understand the role that Congress plays in sustaining a functioning democracy and making the country work.

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Is Fixing Congressional Procedure A Lost Cause?

Changes in how Congress operates have made it a less open, fair and democratic institution. Former Congressman Lee Hamilton worries that it may now be too late to change, and wonders, "Is Fixing Congressional Procedure A Lost Cause?"

Four years ago, the Democratic minority on the Rules Committee of the U.S. House — the body that oversees legislative process for that side of the Capitol — issued a lengthy report excoriating the Republican majority for abandoning "procedural fairness" and "democratic accountability." The House leadership of the time, it charged, had essentially shut down debate and boxed the minority out of any meaningful participation in congressional life.

Last year, the Republicans on the committee — now in the minority themselves — responded with a similar broadside. They accused the new Democratic majority, in the words of their report's subtitle, of abandoning "its promises of openness and civility." "The record demonstrates," they went on to say, that Congress under the Democrats "has actually been more closed than any in history."

This exchange may seem to be an obscure front in the usual partisan warfare on Capitol Hill, but there is something more fundamental going on than simple partisanship. There is, I believe, a generational shift that has taken place in Congress that raises the question of whether the deliberation, openness and fairness that most Americans would want to see in their premier legislative body are receding out of reach.

Simply put, the rules have become a tool of the leadership in both parties to pursue their goals — and there are very few members of Congress who still remember when they instead guaranteed the right of ordinary members to engage in open debate and to affect the course of legislation. Each side seems to recognize this now only when it is in the minority.

The body of rules that members of Congress like to refer to as "the regular order" evolved over time for a reason. It performed a balancing act: on the one hand, allowing any member a chance to participate in debate and legislation, and on the other, seeking to rein in and channel the determination of ambitious politicians to have their say. In doing this, the rules sought to preserve Congress' essential nature as the place where Americans' representatives could bring their various points of view — regional, ideological, moral, and parochial — and work to reconcile them as they grappled with promoting the national interest.

But gradually, beginning under Democratic majorities in the 1980s and accelerating under the Republican majority of the 1990s, the leadership — especially in the House — began to experiment with interpreting the rules to maximize its power. It did so in part because it wanted to banish uncertainty — the unforeseen amendment, the chance that a floor debate might change minds — and in part because the close partisan divide of the last couple of decades has raised the stakes in every vote, redoubling the determination of the majority to avoid politically uncomfortable votes arranged by the minority.

The paths the leadership took seem technical. It used the Rules Committee, stacked with loyalists, to limit the ability of members to debate or amend legislation. It found ways to bypass the general committee structure entirely and have bills considered only under conditions — and with amendments — of its own choosing. It began to rely on huge omnibus bills that are impossible for members to read through, let alone analyze and debate, before they're voted on. It limited the ability of conference committees between the House and Senate to depart from the script laid out in advance by leaders in both chambers.

The upshot, however, is not at all technical. Power is now concentrated in the hands of the leadership and its allies. Actual debate — debate in which the legislative outcome is uncertain — is largely a thing of the past. Legislative maneuvering is aimed less at affecting policy than at affecting elections. The divide between the majority and the minority — not just as partisan bodies, but as individuals serving in Congress together — is deepened by mutual unhappiness over how the other side behaves.

This is not healthy for Congress, and it is certainly not healthy for the American people, who deserve policies that are openly debated and fairly pursued. So I worry that with every passing year, it is getting harder to undo the changes of the past couple of decades. For most members of Congress now, the current state of affairs is "the regular order," and the earlier era isn't even a memory.

Change is unlikely to be driven from within; it will only happen, I believe, if enough members of the public come to see the disconnect between how Congress runs itself day-to-day, and our ideals for a representative democracy that is worthy of the name.

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