By Mark Bauer

The confirmation hearing for Judge Ketanji Brown Jackson has felt like a circus at times, with Senators on the Senate Judiciary Committee regularly grandstanding and giving the impression they’re speaking to an audience that’s not even in the room.

 “I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities,” Senator Ben Sasse said at one point during the hearing. 

While cameras in the confirmation hearings allow Americans a glimpse into the political process, Sasse pointed out that cameras have a second and third effect that also causes people to behave differently than they might otherwise. The videos are easily edited into bite-sized clips, distributed on social media and replayed on cable news where they can score political points.

This isn’t necessarily a new phenomena. Way back in 1995, Supreme Court Justice Elena Kagan, who at the time was a law professor, called confirmation hearings a “vapid and hollow charade.”

And it’s not necessarily because the hearings had become too politicized, she mused in a critique of a book she was reviewing, but because the hearings had become a glowing love-affair of the nominees. Justice Kagan and Senator Sasse appear to be describing two sides of the same coin. If it’s your political team that has trotted out a nominee, you need to express full-throated support of that person. If it’s the other team, you need to act in opposition to that person.

“Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government,” Kagan said. 

Legal reporter Carolyn Shapiro notes that confirmation hearings haven’t always felt like a circus. 

“[H]earings held during the late 1980s and 1990s were remarkably substantive,” she wrote in a SCOTUS Blog post. “This is not to say that nominees during those years made commitments about how they would rule on contested legal issues. But they did discuss their judicial philosophies, their past writings and their beliefs about the role of judges.”

Sounds refreshing.

One way to revert back to hearings that fulfill their original purpose is to change the incentive. Senators are rewarded for showboating in front of cameras because it mobilizes their base, which is increasingly polarized. Unite America calls this the “Primary Problem:”

“Due to geographic self-sorting and partisan gerrymandering, 83% of congressional districts lean so Democratic or so Republican (“safe”) that the only election of consequence is the primary election. 

As a result, in partisan primaries, a small minority of voters decide the vast majority of congressional elections — fueling political polarization and preventing problem-solving,” Unite America reports.

Ranked choice voting seeks to upend the primary problem by giving voters a means by which to vote their conscience, which may provide a path out of the two-party system that currently grips our politics. And if we can achieve that, the next generation might inherit a political system that actually serves the interests of the people rather than the interests of the political parties.

We don’t have to settle for a politics that resembles a circus; we can decide to stop selling tickets.


Mark Bauer is a producer, entrepreneur, day trader and former Independent candidate for Congress in Texas. Previously he spent 10 years as a legal journalist covering the legal market in Texas and regulatory issues in Washington DC.

Mark’s primary interests involve using content and storytelling to help different groups of people better understand one another.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of Rank the Vote, its members, supporters, funders, or affiliates.