It is expected that Senators will say that they want to wait and see what Judge Sotomayor will say at her confirmation hearing before they decide how they will vote.

This is understandable, I suppose, but from my experience, what a nominee says during his or her hearing, while certainly not irrelevant, is one of the least important considerations upon which they should base their vote. Nominee's judicial and professional record, along with their public statements and reputation for integrity, are much more reliable indicators as to the kind of judge they will be. Our Founding Father recognized this early on, and it is the main reason confirmation hearings were not held on a regular basis until the 1950s.

There are two things that work against any substantive new information being revealed in a confirmation hearing.

First a nominee can and should refuse to go very far in giving their opinion regarding any legal issue that might come before the Supreme Court in the future. That, of course, covers most any legal issue

Second, in 1990 the distinguished jurist, Robert Bork, refused to subject himself to the usual dog and pony Q and A, "how to handle the senators" sessions now given to nominees in preparation for their hearings, the so-called "murder board." During the hearings he engaged in an open and candid dialogue with regard to his judicial philosophy. We know how that turned out. The odds are great that never again will a nominee make the mistake of committing candor.

For some time now everyone has understood the name of the game: Take as much off the table as possible as inappropriate for discussion. Then, dance around the rest. When you get a question that you're expected to answer, try to sound as knowledgeable as possible, but play for time and never say anything committee members would find objectionable.

So the process is basically for the purpose of giving the nominee the opportunity to commit a gaffe of other unforced error. Then the nominee ma y be denied confirmation, not so much for their lack of qualifications or even their judicial philosophy, but for their not being clever of artful enough to win the game.

I would suggest that for a person to be judged on the basis of a few days of practiced, self-serving comments an obfuscation, instead of their entire life and record is absurd. And to think that their service on the Supreme Court would be consistent with their statements before a committee they will likely never sit before again, instead of their record is inconsistent with both logic and experience.

Listen to the audio here.