Elena Kagan’s nomination hearings have concluded and a vote in the Senate will occur shortly. Although the televised hearings were not the stuff of compelling political theater, they are somewhat exceptional. Polities around the globe have fashioned national high courts and written constitutions but public hearings over nominations are rare. Canada held its first public hearing in 2006. Commentators noted how dignified the hearing was compared to the United States but then Parliament lacks the power to block appointments. Germany, on the other hand, has vigorous debate and negotiations over appointments but these are conducted in secret.
The question is whether there is any democratic pay-off to having political actors debate nominations in public. When it comes to decision-making in a democracy, public discussions obviously matter since otherwise citizens lack the information to make informed choices. It is not clear, however, that publicized hearings for nominees adds any useful information. The Senators make remarks designed to mobilize their core constituents but which throw little, if any, light on what the job of the Supreme Court is and what qualities we might want in a prospective Justice. Light may be the best disinfectant in a democracy but some institutions, such as courts, perhaps operate better out of the glare of the cameras.