America (, Vol. 193 No. 13, October 31, 2005

Advice and Consent

By James F. Gill
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 intended?

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 shamelessly.


James F. Gill is a partner in the law firm of Bryan Cave L.L.P., New York, N.Y.
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