This morning I testified before the presidential commission on the Supreme Court, on a panel entitled “Perspectives from Supreme Court Practitioners and Views on the Confirmation Process.” You can read my written testimony — based largely on chapter 19 of my book, about lessons learned — and (eventually) watch all the panels, including mine, here. Here were my prepared opening remarks, which fit into the five minutes allotted:

Co-Chairs Bauer and Rodriguez, thanks for this opportunity to testify about the role the confirmation process plays in Supreme Court debates. My testimony is based on my recent book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, a copy of which I’d be happy to provide to any commissioner who’d like one.

Now, I have seven lessons from our long history of confirmation battles.

First, politics has always been part of the process. From the early republic, presidents have sought people in line with their own political thinking. There’s never been a golden age when “merit” as an objective measure was the sole consideration. And Senate control is most of the ballgame; historically, less than 60% of nominees have been confirmed under divided government, while about 90% have been confirmed under united government. The disparity is even more stark in presidential election years (20% vs. 90%), so the Garland blockade was hardball politics, but by no means unprecedented.

Second, confirmation fights are now driven by judicial philosophy. This is a relatively new phenomenon, because fights transcend any particular nominee and it’s no longer accepted that a president gets to have his choice as long he meets certain neutral criteria. With the parties adopting incompatible judicial philosophies, it’s impossible for a president to find an “uncontroversial” nominee.

Third, modern confirmations are different because the political culture is different. The inflection point for our legal culture, as for our social and political culture, was 1968, which ended a 70-year near-perfect run of nominations. Until that point, most justices were confirmed by voice vote. Since then, there hasn’t been a single voice vote. And the inability to object to qualifications has led to manufactured outrage and scandal-mongering.

Fourth, hearings have become kabuki theater. Public hearings have only been around for a century. And they weren’t regular practice until the 1950s, when Dixiecrats used them to rail against Brown v. Board. These days, senators try to get nominees to admit that controversial cases are “settled law,” whether Roe from a Democrat or Heller from a Republican. And that’s before we get to “gotcha” questions, or last-minute accusations of sexual impropriety.

Fifth, every nomination can have a big impact. The confirmation process has little to do with being a judge. As Don McGahn put it, “it’s a Hollywood audition to join a monastery.” Regardless, as Justice White was fond of saying, every justice creates a new Court. That’s why every vacancy is important.

Sixth, the hardest confirmations come when there’s a potential for a big shift. Think of it this way: regardless of which party controlled the Senate, would there have been as big a political firestorm last fall if President Trump were replacing Justice Thomas rather than Justice Ginsburg?

Seventh, the Court rules on so many controversies that political battles are unavoidable. Under the Framers’ Constitution, the Court hardly ever had to block a federal law. But as the Court let the government grow, so has its own power to police the programs its own jurisprudence enabled. In that light, modern confirmation battles are all a logical response to political incentives.

The ever-expanding size and scope of the federal government has increased the number and complexity of issues brought under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision-making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.

So should we reform the confirmation process? I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose but now inflict greater cost than any informational benefit. With instantly searchable records that nominees now have, is there any need to subject them, and the country, to an inquisition? Or maybe senators could hold hearings in closed session.

In the end, all “reform” discussion boils down to re-arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The judicial debates we’ve seen the last few decades were never really about the nominees themselves. They’re about the Court’s direction.

The reason we have these heated battles is that the federal government is making too many decisions for such a large, diverse, and pluralistic country. Let Congress decide truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

Thank you.

You can read all the witnesses’ testimony and watch the hearing here.