Advice and Consent
By Dan McLaughlin Posted in The Courts — Comments (22) / Email this page » / Leave a comment »
Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." There remains, however, lingering controversy about the role of the Senate in giving (or withholding) that advice and consent, and all the moreso in today's world of powerful (and, hence, politicized) courts.
There remains broad, bipartisan agreement that the Senate's role in this process is not as a rubber stamp, and that the Senate has an obligation to assure itself that a judicial nominee is competent to the job, qualified by some relevant experience, has the necessary honesty and integrity, has at least some measure of independence from the person of the President, and is not otherwise disabled by conflicts of interest from serving on the bench. That's the easy part, and we have seen nominees in the past fail to surmount one or more of those basic tests, from Abe Fortas to Douglas Ginsburg to Harriet Miers.
The trickier question is ideology: the compatability of a judge's judicial philosophy and likely (as predicted by the public record at the time of confirmation) rulings on contentious issues with the beliefs and ideals of Senators and their constituents. Each Senator's determination of when and whether to vote for or against a judicial nominee (or, in the extreme case, to filibuster) will be determined and publicly justified on at least two levels. One, as is familiar, is the level of political calculation: each Senator seeks to please the wishes of the voters in his or her State, the broader electoral interests of his or her party, the demands of activist groups that provide funding and logistical assistance in re-election campaigns, and (for many Senators) the wishes of primary and general election voters in future presidential contests. Often, these interests are conflicting: Democratic Senator Ben Nelson of Nebraska, by committing to vote for Samuel Alito, is clearly acting in a way that will please Nebraska voters but disserve the interests of his party at large and the wishes of activist groups that customarily support Democrats. Democratic Senator Evan Bayh, if (as expected) he votes against Alito, will displease his Indiana constituents but please the primary voters for his anticipated 2008 presidential bid.
Aside from pure politics, however, Senators must give some thought to the public, philosophical justifications they advance for supporting, opposing or filibustering a nominee. There are seven basic models a Senator can follow in making and justifying that decision:
1. Deference to the President: The "Deference to the President" model assumes that, so long as a nominee is qualified and has no ethical issues, the Senate's job is done, and the nominee should be approved. This model is usually advocated by a number of Senators from whichever party holds the White House - especially if that party is a minority in the Senate - and by a handful of Senators from the other party who need cover for voting to confirm because the president is popular in their state. While there's certainly an argument in favor of this model - after all, the president gets to do the nominating, and his election should have consequences - as any number of liberal pundits have pointed out over the past five years, giving carte blanche to the president may depoliticize the confirmation process, but it only increases the incentive to politicize the nomination process, since there's no check on the president's nomination of highly ideological judges.
2. Judicial Philosophy: The "Judicial Philosophy" approach, popular now among conservatives, appears, at least, to be a variant on the Deference model; the argument is that nominees should not be voted up or down (or filibustered) based on their likely or anticipated votes, but should be confirmed so long as they demonstrate a reasonable process for deciding cases. At the extreme, a lack of coherent judicial philosophy may indicate a lack of competence, as was a key concern with Harriet Miers; while there is no need for a judge to swear allegiance to an all-encompassing theory of judicial legitimacy, a judge must at least show the ability to offer reasoned justifications for his or her decisions.
The downside of the Judicial Philosophy model is that it is unsatisfying. There's too much disagreement on what constitutes a reasonable philosophy for such a model to produce consistent results across both parties, thus defeating the ability of such a model, even if widely adopted, to deliver on its promise of a depoliticized judicial nomination process (which is not to say that a sound judicial philosophy is unimportant to reducing political influence within the judiciary, just to recognize that the political process finds it insufficient to answer its demands). And there are too many pressures even from conservative adherents of this model to nominate "good" judges on particular issues for anyone to pretend that we are all entirely indifferent to the results of the process.
3. The President's Promises: This is the model I personally prefer, as I explained back in October:
[P]residents are entitled - indeed, obligated, if you take seriously the idea that legitimacy flows from the people's approval of the principled positions taken during an election campaign - to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal - as far as the issues that are decided by courts are concerned - but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s - I believe Brennan, Blackmun and Marshall all did this - who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court's orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.
In Bush's case, he unquestionably campaigned and has promoted himself in office as a social conservative - pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian - i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations - might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. . .
The flip side of that is that the president's own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president's own stated philosophy.
4. The Senator's Choice: The Senator's Choice model, advocated by Chuck Schumer, treats the nomination process like any ordinary legislation and allows the Senator to vote against anyone he or she disagrees with: the president nominates who he wants, but the nominee gets confirmed only if 50 Senators approve of and agree with the nominee. This model, which treats Senate elections as particularly important in shaping the courts, is little different from Deference to the President when the president's party controls the Senate (unless there are significant dissenters within the president's party) but it rises in importance when the Senate and the White House are in opposite hands. Traditionally, most Senators have been hesitant to follow this model explicitly without any deference to the president's right to nominate; Ginsburg, Scalia and Roberts all received many votes from Senators who disagreed with them, and Clarence Thomas was confirmed by a Democratic-controlled Senate.
5. Consensus: The Consensus model is a variant on the Senator's Choice model, but even more demanding and explicitly supportive of the filibuster: the demand for a "consensus" nominee broadly acceptable to a lage component of the Senate presupposes that a nominee who is unacceptable to as many as 40 Senators should not be confirmed. The main weakness of this model is the Framers' unwillingness to require a supermajority for judicial confirmation; Article II speaks only of the consent of the Senate, not any special proportion thereof.
6. Litmus Test: Under the Litmus Test model, the philosophy/ideology of the nominee is a factor in confirmation only to the extent it can predict the nominee's votes on particular issues, but the nominee's view on one or more non-negotiable issues (usually abortion is #1 on this list) becomes a make-or-break factor. Conservative senators and many liberals regard this model as one that should not be admitted to in public, whether followed or not, but there are open exponents of it, most notably pro-abortion Senators like Arlen Specter (who has voted for apparently anti-Roe nominees anyway) and Dianne Feinstein, and it has had popularity at times in the past in fights over segregation and the New Deal. The Litmus Test model is perhaps the most supportive of the filibuster, since it assumes that some issues are too important to be left to uncommitted judges.
7. Status Quo: The Status Quo model has been cited much by Democrats lately, with talk of nominees who will "preserve" the Court's "balance" and adhere to "legal mainstream" positions, but at its core it's the most incoherent and in some ways the most small-c conservative model, as it expects that the nomination process will be used to ossify the current state of the law and prevent the appointment of judges who will bring their own, independent judgment to the bench. It's also deeply anti-democratic, assuming that the nomination and confirmation process will be entirely unaffected by elections.
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Advice and Consent 22 Comments (0 topical, 22 editorial, 0 hidden) Post a comment »
"1. Deference to the President:.... This model is usually advocated by a number of Senators from whichever party holds the White House - especially if that party is a minority in the Senate - and by a handful of Senators from the other party who need cover for voting to confirm because the president is popular in their state."
I think this explanation fits the current Ds quite well. But since 1980, the Rs have shown actually philosophical (as opposed to strategic) deference to the President. Breyer and Ginsberg would have gotten no more than 60 votes based on a deference due to strategic reasons. Seeing R Senators from MS, OK, UT, etc vote for these two is a sign that there was an actual deference going on. It is sad that since Bork the Ds have abandoned philosophical deference and it is now mainly used as a cover on their part. I think this is what has made the judicical nomination process so silly. Judges can't say anything controversial lest they get voted down. If there was a true deference we could actually hear from the prospective justices.
I don't recall anything in the Constitution about a litmus test, preserving the status quo, or essentially placing the power in Senator's hands. According to the other schools then, as well as common sense, Judge Alito is a top notch selection and deserves to be confirmed.
Republicans have been more willing to follow this model.
Thank you for laying out the motivations for Democratic Senators to vote for or against Judge Alito. From day one the President has made it clear that he does not make these picks on ideology or litmus tests. Alito has all of the important characteristics to serve on the Supreme Court. In fact, Judge Alito was approved unanimously for the Appeals Court when the Senate was under Democratic control in the 90's. Most of the Democrats who are voting against Judge Alito (some of whom voted for him previously) decided to vote against the President's nomination long before he was even nominated. This is not about picking a qualified, competent person but about partisan politics and it's disturbing to watch as an American citizen. The appropriate thing to do is look at his credentials and experience, review the facts, listen to his answers (and give them some credit) and then make a decision. As Senators begin to make their statements of support or opposition, a legitimate answer should be demanded by the American people.
I like the way you laid things out.
Personally I think, barring a complete depoliticization of the process, that the best approach is one in which Options 3 and 4 are used.
I think that Option 3 is great for those who really care about judicial nominations and want a President that will give them the appropriate type of nominee for their desires. If you really really want a anti-Roe nominee then vote for a President who will nominate anti-Roe nominees.
The problem though is that not everyone is looking for an upheaval of the status quo in justices and people that are happy with the status quo on the bench aren't going to vote for a President based on their likely judicial nominees.
That's where option 4 comes in. Senators, presumably, are more a reflection of their state consituents than a President is. If a judicial nominee comes up that is anathema to a state's voters, it is the responsibility of that state's senators to work to NOT allow that nominee to get voted in.
Checks and balances. It's what our country is all about. I think too many people seem to think that checks and balances should be removed when they stand in the way of achieving their objectives.
The Republicans have had 4 SCOTUS justices confirmed since Bork. Only 2 have been withdrawn and neither was becuase of Democratic pressure.
Both Breyer and Ginsburg were pre-approved by the GOP Senate prior to their being nominated.
Which position is right depends on the composition of the Senate--it's no different from what counts as high crimes and misdemeanors for the purposes of impeachment.
Which one is right? Well, if you read Federalist 76, they all are, sort of. It seems to me that the Constitution was written to include all possibilities allowing for these contingencies while trying to be the least restrictive.
Hamilton, who seems to have travelled in a time machine to today, was dead-on when he described the human nature of Congress as a body of interests:
Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
He states that while one man (the President) has his own intrinsic interest and those are multiplied exponentially when you have a body of men. This does not, however, mean that the decision should be left up to the President:
They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided.
It seems as if all of the downfalls of human nature were taken into consideration and the Advice and Consent was meant to be a tedious process of checks and balances.
Check on the Congress:
The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them
Check on the President:
To what purpose then require the co-operation of the Senate? ... It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.
The treatment of circuit court nominees (and the existence of Harry Reid's "filibuster list" for SCOTUS nominees) has severely restricted the pool of confirmable nominees.
Yes, Roberts was -- and Alito will be -- confirmed, but neither Roberts nor Alito had a record of advocating an originalist view of the Constitution, and both were chosen specifically for traits that would aid them in getting confirmed.
If the White House considered itself free to nominate genuine and out-of-the-closet originalist jurists, Janice Rogers Brown or Edith Hollan Jones might have been nominated -- and absolutely no "deference" would be shown them by the Democrats.
Two different things. How exactly did the Democrats differ from the Repulicans when it came to blocking circuit court nominees? The Republicans pocket vetoed well over a 100 Clinton nominees. You can tell me that there is a huge difference between that and a filibuster but to me they are the same thing because the intent is the exact same.
And Janice Rogers Brown is so far off the reservation when it comes to judicial philosophy there is no reasonable way that she could fall into the "deference to the President" or the "President's Promises". I realize that she is the poster child for the "Let's stick to the Democrats" brigade but she would be a TERRIBLE nominee.
The treatment of circuit court nominees (and the existence of Harry Reid's "filibuster list" for SCOTUS nominees) has severely restricted the pool of confirmable nominees.
Brown, Owen and Pryor were delayed; Estrada and Kavanaugh kept off the circuits altogether. That's severe?
It's called "Eliminating One Branch of Government". See especially The New Republic's editorial in opposition to Alito:
http://www.tnr.com/doc.mhtml?i=20060130&s=editorial013006
Money quote:
Under the guidance of editors like Felix Frankfurter, Learned Hand, and Alexander Bickel, we have argued that judges should play a modest role in U.S. democracy, generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing...On the Court, Justices Ginsburg and Breyer have surpassed our hopes, voting to strike down fewer state and federal laws than any other justices.
So ceding all power to the legislative branch (although certainly not the executive, you'll note) is their strategy. Any judge that will overturn laws that are only "moderately" unconstitutional is an activist nutjob. Way to go, TNR.
It's a different philosophy, but it is a philosophy.
a solid originalist with a bit of a libertarian streak is "off the reservation"?
Just where is your reservation? I bet a lot of "living constitutionalists" live there.
all were denied votes when all of them would have been recommended by the committee and confirmed by the full Senate.
Brown, Owen, and Pryor were graciously allowed a vote (By the minority! Just who won that election, anyway?) after copious kowtowing by selected members of the majority and after a credible threat to use the nuclear option.
And we haven't even discussed the nominees that the President didn't nominate because he knew his choices would get zero deference from the minority. Stealth nominees, anyone?
When Clinton nominees got stalled in committee, the Republicans were in the majority, trying to act like a majority. If those nominees had been nominated to and advanced by a committee run by Clinton's party, there would have been no filibusters to prevent a vote on their confirmation by the full Senate.
Compare. Contrast. Discuss.
based on judicial philosophy, esp after the Borking and given the left's use of the court as a political institution to make and impose laws the public will not vote for. I consider a living constitution philosophy to be anathema to the oath to uphold the constitution.
I agree with our analysis and critique of the diary.
I wish I could have a living mortgage and declare it paid in full!
If the constitution is living then why shouldnt the opinions of the supreme court be living. It causes contempt and disrespect for the law.
And if the GOP has not the guts to stop the dems from using their tactics, then so be it.
The senate is an equal player. The rules about deference go back to an era when most judges exercised judicial restraint.
btw
happy new year
clinton gave the republicans a list of possible nominees and the gop said both breyer and ginsberg were acceptable so they would have looked silly opposing someone they said was ok with them.
The Democrats controlled both the house and the Senate in 1993 when Clinton gave them the list of all bad choices. Ginsburg and Breyer were the best choices so you can imagine how bad the rest were. Fox news and Rush as we know them didn't exist which gave the Dems a complte lock on all the news sources because blogging didn't exist either. With no right wing news to pull them any towards center the left news services were much more favorable(if that's possible) to the DNC than they are now.
The country was getting in election mode and the Republicans chose to confirm and get on with the Contract with America. They didn't have the votes to block confirmation Clinton's choices. The DNC controlled all three branches of government. The major difference is that republicans were smart enough to figure that out.
Also, the DNC still can't come to terms with the fact that they don't have a complete lock on the news.
A bit of a libertarian streak? First off if she really is a "strict constructionist" her views on government and economics are completely irrelevant because she would rule based on the letter of the law.
But she doesn't.
This is a woman who thinks that William Jennings Bryan is a too little liberal. A woman who wishes to return to the halcyon days of Lochner because she thinks that the government should put absolutely no constraints on the type of contracts people can sign. Matter of fact Ms "Strict Constructionist" believes that the Constitution calls for a free market and that there is a "right of contract". Why don't you show me where those "rights" are in the Constitution.
Don't confuse judicial philosophy with political philosophy.
totally accurate. The republicans deemed them to be the least worst choices. They accepted them because they did not have a majority and they knew that.
I think you did an admirable job of laying out the various schools, objectively. I learned something.