Dworkin on Roberts and Alito

In my view, future nominees can be discouraged from such evasion only if there is a change in the public's understanding of the function of the confirmation hearings and of the nominees' moral responsibilities in those hearings. Enough people must be persuaded that the hearings are not a game of hide-and-seek and that a nominee who fails to be candid is morally culpable. It would be helpful to that end if the chairman of the Senate committee (or the ranking member of the other party) were to explain in his opening statement that the committee accepts without further reassurance that the nominee intends to abide by the law and will apply what he believes to be the general principles that underlie the Constitution rather than try to invent new ones.

He should then add that he and the committee are well aware that lawyers disagree about what these principles are, and how they should be identified, and that the committee is therefore anxious to know the nominee's answers to these controversial questions of principle. Perhaps the public can somehow be persuaded that a nominee's failure to answer those substantive questions candidly would justify—indeed force—senators of both parties to vote against his confirmation. That may sound unlikely, but it is hard to see what else could save the constitutional process from irrelevance.

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