The National Catholic Review
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 purposesto get re-elected, advance presidential ambition, raise money for senatorial elections or ensure the constitutional survival of pet legislationdoes 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 completelyrefusals 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.

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

Comments

Mary Y. Dilworth | 10/31/2005 - 11:31am
James F. Gill's cogent article on ADVICE & CONSENT should be forwarded to every Senator. It presents the proper role of the Senate in considering a nominee for the Supreme Court and, I think,reflects the opinon of most Americans.

The Senators with the most vocal objections to nominees have THEIR agenda and seek to find out if the nominee agrees with that agenda. This, of course, is not consistent with their proper role as so eloquently stated by Gill.

Thomas M. Whaling | 2/21/2007 - 12:24pm
James Gill’s essay “Advise and Consent” (10/31), should cause the body politic to reread Allen Drury’s book Advise and Consent. How I wish politics were like a friendly cribbage game. But the adage “All is fair in love, war and politics” still prevails. When Christ said, “Render to Caesar what is Caesar’s and to God what is God’s,” he made a very profound statement about our human nature. Now is the time for all good persons to rise above our weakened nature. Just how we can come to the aid of our fellow man in the current political system is a puzzler.

William H. Dempsey | 2/21/2007 - 10:27am
Much of what James F. Gill says in his article, “Advice and Consent” (10/31) concerning the proper role of the Senate in passing upon presidential appointments to the Supreme Court is incontestable; but his view that the Senate should confine its inquiry to questions of “integrity, intelligence, experience” and the like and pass over questions of ideology is not. The difficulty, of course, arises because the Supreme Court, rightly or wrongly, has taken control of a wide array of important and contentious social and political issues such as abortion, birth control, homosexual intercourse, differential treatment of gays and women, and voting rights. Moreover, given the potential sweep of the privacy rights that the court has discovered in “the penumbra” of the Bill of Rights, more may well be on the way, depending very much on the makeup of the court.

When the presidency and the Senate are in the hands of a single party, there is normally no problem barring a filibuster—which has no support in the Constitution and which can be overridden when the majority sees fit to do so. But when control of the presidency and the Senate is divided, reflecting a like division among voters on important issues within reach of the court, then I suggest it is far from clear that the public interest is best served by leaving the president free to put control of the court in the hands of justices whom he is persuaded will reflect his views on such issues rather than the contrary views of the majority of the Senate.

Whatever the opinions expressed during the Constitutional Convention, the text of the Constitution does not support or even suggest such a narrow senatorial role, nor could the framers have anticipated the vast expansion of judicial power that has taken place since their time. And the effect of such unconfined presidential power is greatly amplified by the fact that the composition of the court may be essentially unchanged for decades—witness the current court before Chief Justice Rehnquist’s death—irrespective of decisive intervening changes in the control of the elective branches.

It would be much less messy, to be sure, if senators would look only at a nominee’s qualifications of mind and experience; and surely they should not seek to learn how a nominee would vote on a particular issue likely to arise before the court. But I, for one, hope my senators would vote against a nominee who, for example, had authored a lower court opinion or an article endorsing the expansion of the right to privacy to gay marriage; and I would expect and support the right of senators of contrary view to embrace such a nominee.

In a sense, this contentious situation has been forced upon all of us by the Supreme Court itself by way of its Roe v. Wade decision. But that’s where we are, much as we might like a return to the good old days. Since each party now takes either a wide or narrow view of the senatorial role, depending on who’s in control, and since plainly neither is going to change, it seems to me we might as well relax and confine ourselves to insisting that the Senators act with a decent regard to decorum. That’s challenge enough, it seems to me.

Mary Y. Dilworth | 10/31/2005 - 11:31am
James F. Gill's cogent article on ADVICE & CONSENT should be forwarded to every Senator. It presents the proper role of the Senate in considering a nominee for the Supreme Court and, I think,reflects the opinon of most Americans.

The Senators with the most vocal objections to nominees have THEIR agenda and seek to find out if the nominee agrees with that agenda. This, of course, is not consistent with their proper role as so eloquently stated by Gill.