Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 19, 2006
POLITICS/LAW: Advice and Consent

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.

Posted by Baseball Crank at 8:09 AM | Politics 2006 | Comments (9) | TrackBack (0)

Each side sees the "advice and consent" part for their own end. Jesse Helms refused to put forth any of Clinton's nominees unless he gave in on UN dues and reforms. I alwasy thought Helms was in violation of his oath to uphold the constitution when he did that. Eitehr give advise, consent or not, but DO IT.

During the Roberts hearing, Orrin Hatch, to me a simple vitamin peddler who would poison the rest of the country as long as Utah made the herbs, extolled the glory of the Senate happily confirming some Utahn to the court after debating the issue in less than a day.

I also hate it when I hear congressmand and especially senators showing deference to the president, any president. Their job is to provide a check and balance, not to brown nose.

Also, they never advise, only consent. Has the senate ever, in recent history, advised the president about any nominee for any position? The hearings are to provide consent only. However, the true qualifications are like those of a hall of famer. If you are in, you are in.

Bush has too much power, but I don't blame him. He is only filling the vacuum left over by the senate toadies who lack the courage or abillity to do their own jobs, and someone has to do it.

Posted by: Daryl Rosenblatt at January 19, 2006 10:20 AM

Senators should confirm judicial nominees who are competent to do the job.

Anything else opens doors that simply shouldn't be opened.

Posted by: Mike at January 19, 2006 10:23 AM

From Daryl above
"Also, they never advise, only consent."
So you want to see Bush walk through the halls of the capitol with a clipboard polling the senators for their choices?
Just because advice is not solicited publicly does not mean it hasn't been sought or given. In fact, publicly given advice is more suspect and less trustworthy then that given in confidence when it coms to political matters. The only people who would deign to publicly 'advise' the president on who he should nominate are self-agrandizers, bullys, or proxy-fighters trying to frame their own judgement as more important than that of the president in the eyes of the press and the public.

Posted by: bensdad00 at January 19, 2006 11:46 AM

Mr. Crank, everything you wrote sounds really good. It's just that I have a hard time believing very many senators are basing their decision on anything but a political calculation. They may use one of these philosophies to justify their decision, but they won't use one of them to reach it.

Posted by: Jeff A at January 19, 2006 12:02 PM

Jeff, isn't that the very nature of philosophy though, to justify action not determine it? At its best any Philosophy - religious, political, social - only offers explanation or excuse for decions made by baser human insticts. The very codification of a philosophy is only the structured expression of a collection of personal biases.
It boils down to the old adage - actions speak louder than words.
No matter what senators say, all that matters is how they vote.

Posted by: bensdad00 at January 19, 2006 1:33 PM

Agree w/ Mike who, I think, follows the Crank's "Presidential Deference" category.

Appointing judges is the executive's privilege. Advice and consent is a limited check to ensure against rank incompetency and charlatanism.

A workable standard beyond that is impossible. Proponents of the living constitution will disagree, of course, and argue that advice and consent is deliberately elastic language adopted to survive the vagaries of political and cultural change from generation to generation (ah, the founders' forward-looking genius!). Its been my experience that lack of contemporaneous evidence for the proposition will not deter them. Such blind faith deserves respect (just ask SCOTUS's 5 Catholics), but I'm not sure how well it will serve the nation in its third century.

Posted by: seamus at January 19, 2006 3:54 PM

Although the system is messier and more divisive than it should ideally be, I think in the long run, 'pure politics' is actually a pretty good way of arriving at the makeup of the Court.

Posted by: Jerry at January 19, 2006 4:13 PM

Federalist 76 argues strongly against pure politics; and against the Senate's choice model; and against anything but presidential deference (president's promises and judicial philosophy seem better as subsets of presidential deference than stand alone approaches). Call me a sentimentalist, but things like that should matter.

" man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or even perhaps of superior discernment."

Posted by: seamus at January 19, 2006 4:31 PM

Actually, President Bush did consult with the Senate...and Senator Reid recommended he consider Harriet Meiers...I think that went well

Posted by: Maryland Conservatarian at January 20, 2006 10:33 AM
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