|Only the President of the United States,
according to the U.S. Constitution, can nominate persons to the
federal judiciary and appoint such persons, with the “advice and
consent” of the Senate. The discussions that took place at the
Constitutional Convention in the summer of 1787 make it clear that the
Senate confirmation process was to be limited. It was to serve as a
check against political patronage, nepotism and incompetence. No one
at the Constitutional Convention espoused the proposition that
ideology ought to be considered during the confirmation process except
in the rare and unusual case where ideology would prevent a candidate
from fulfilling the judicial oath. On the contrary, the draftsmen of
the Constitution eschewed the concept of injecting ideology.
Accordingly, the Senate’s confirmation
process, until recent times, has been limited to inquiries as to the
nominee’s integrity, intelligence, industry, experience, judgment,
understanding and judicial temperament. That is as it ought to be.
Presidents invariably nominate candidates for
the federal judiciary whose ideology is in harmony with their own,
which of course is expected and proper. Most voters take that
important factor into account when they cast their ballots. Because
our election process produces presidents of various ideologies, our
federal judiciary is a philosophical mix, which ebbs and flows; and
that is desirable.
In addition, presidents are sometimes
surprised, if not disappointed, after appointing candidates they
thought would reflect their ideology but do not. That happens with
considerable frequency. President Eisenhower’s appointment of Earl
Warren as chief justice of the Supreme Court is a classic example.
Other relatively recent Supreme Court appointments in that category
were those of Justices William Brennan, Byron White and David Souter.
But once an appointment has been made it cannot be undone; it is for
life. This, too, is desirable; it safeguards judicial independence.
For the Senate to endeavor to exact a
commitment, a promise, a tendency or a leaning as to how a nominee
will vote on a given issue or issues or to vote against a nominee for
refusal to afford the same is wrong. As noted above, there is no
constitutional basis justifying such an ideological intrusion, and it
violates the will of the majority of Americans who elected the
nominating president. More important, it flies in the face of the
fundamental doctrine of separation of powers and undermines the
independence of the judiciary. Answering such questions, however
cleverly those questions may be crafted (raised, for example, in an
effort to insure that a nominee is not “outside the mainstream”),
would place a nominee in a political straightjacket should such
questions arise following the appointment. A justice’s failure to
decide a case in accordance with what he or she said during a
confirmation hearing would suggest that the nominee had lied in order
to get the job.
For these reasons judicial nominees usually
refuse to answer such questions. Justice Ruth Bader Ginsberg refused
55 times during her confirmation hearing in 1993.
Two additional observations:
• If the Senate, under one guise or another,
can extract a commitment on one issue, it follows as day follows night
that commitments may be procured on all of the issues of the moment;
this obviously would be the death knell of judicial independence.
• It would also be absurd to contend that one
right is more important than all the others and therefore demands
special attention and closer scrutiny. Is the right to an abortion
more important than freedom of the press? Is the privilege against
self-incrimination more important than the protections against illegal
searches and seizures? Is freedom of religion more important than the
right to a trial by a jury of one’s peers? Should constitutional
rights be ranked? Is that what the framers of the Constitution
I believe that a senator who uses a
confirmation hearing for political purposes—to get re-elected, advance
presidential ambition, raise money for senatorial elections or ensure
the constitutional survival of pet legislation—does our nation a great
disservice and should be castigated. I also believe that the vast
majority of Americans are weary of such tawdry political spectacles.
Other senatorial devices aim to strip
presidents of judicial prerogatives completely—refusals to hold
hearings for nominees, filibusters and the so-called “blue slip”
policy by which senators are given a veto power over judicial nominees
seeking to sit in their state. Such tactics are outrageous and cannot
be justified by the fact that both major parties have engaged in them