Saturday, September 17, 2005

Appointment of Justices

I would be interested to hear what others have to say regarding the proper (as opposed to constitutionally required) method for the appointment of justices to the Supreme Court.

Until the last few years, for instance, it was the tradition that senators would defer to the president on the basis of the jurisprudential philosophy of the nominee. Justices Ginsburg and Breyer got votes from most Republicans. Justice Thomas was approved by a Democrat-controlled Senate and such opposition as he got was largely premised on his fitness, though his views did receive considerable criticism. At the ACS debate a couple of weeks ago, both Professors Tushnet and Barnett agreed that the Republican votes in favor of Clinton's nominees was an error.

Some claim that this deference is constitutional in nature: the Congress is bound to allow the president to select amongst qualified candidates. To make this more clear, and in the context of the filibustering of judicial nominations, a Senate rule which required a president to first consult with senators before advice and consent would, according to this thinking, be unconstitutional. To convert senatorial votes on nominees into policy approval would subvert the president's constitutional powers.

Isn't this argument weaker in relation to judges than it is to subordinate executive officials, such as the Secretary of State? That is, if the Republican Senate had forced Clinton to accept a Secretary of State to its liking, that action would have been unconstitutional (Madeleine Albright was certainly not liked by Republicans). Given that the Supreme Court is the head of another coordinate power, shouldn't the presidential power be weaker and the duty of the Senate to confirm according to ITS best judgment stronger?

Or is the tradition correct and the more apparent check of Congress on the Judiciary, the Exceptions Clause, is the appropriate vehicle for legislative power?

If the Democrats do vote largely in favor of Roberts, I think they will strengthen the hand of the next Democratic president, a political consideration. That this consideration seems to be playing so little role in the matter may reflect their honest assessment of their own PRESIDENTIAL prospects...


Sarah Kohrs said...

Just some quick thoughts:

1. It strikes me that if the Senate does have a lot of power over the president's choice here, the legislative branch is left with two checks on the judiciary (this and the jurisdictional check) while the executive has none. It seems unlikely the framers would have wanted this as they felt the legislative was already the most powerful branch, and the one most in need of being reeled in occassionally.

2. It does seem the Senate would have more say over the judicial nominees than over the president's executive or cabinet members. But that is not saying a lot since the president can pretty much appoint who he wants in the executive.

3. It might be damaging for democrats to put up too much of a fight over Roberts. It will make them look partisan and spiteful after he gets confirmed, perhaps making them lose political power in the next (what I assume will be a bigger) battle for O'Conner's spot.

J. Li said...

Sam Donaldson (beacon of intellect) said that Justice White's confirmation hearings consisted of 8 questions over 15 minutes. Given my past post on "The Canard of the Consensus Nominee," that's my own view on how "advice and consent" should generally go.

That said, the Senators should feel free to take Barnett and Tushnet's advice. I certainly don't think there's anything *unconstitutional* about that. If every Democrat did that vis-a-vis Roberts, Roberts would still be confirmed (assuming no GOP nos).

And that's the bottom line. My problem has never been about Senators taking account of judicial philosophies to vote against the President's choice. That is well within their advice and consent power. But the filibuster is whole other matter. Given how rare it is for the President and the Senate to be of the same party AND a S. Ct. vacancy being available at the same time, that rarity suggests that the American people want a certain "shift" on the Court (again, a point I already made in my previous post). So this whole rhetoric about keeping the balance of the Court the same is, to me, ludicrous. If the Democrats controlled the Senate, then that would be one thing, but they don't. And a filibuster under these circumstances clearly subverts democracy, even if I am generally not so nutty as to call it unconstitutional.

Charles Iragui said...

J. Li,

I think the issue of different parties controlling the Senate and the Presidency is the critical one. The filibuster controversy will end in its elimination, sooner or later. The question of deference becomes live once the partisan division occurs. We agree that this deference is a strong tradition, even with constitutional coloration (Faithful Execution Clause). Perhaps this deference should be weaker in the case of judicial appointments but it hasn't been any weaker till this recent period.

If the Democrats now vote against Roberts on ideological grounds (probably they'll skirt this issue by opposing him for lack of sufficient information), this would effect a change in the tradition.

We don't really know how this would play out with divided government. But it would be a constitutional change, in the British sense of an unwritten constitution which guides how things are done.



J. Li said...

Hey Charles,

I brought up Justice White's confirmation hearings because I do think that the "deferential," "traditional" model is more faithful to the basic principle that the appointment power -- of justices or of Cabinet officals -- lies with the President. Certainly the text of the Constituion does not differentiate between "advice and consent" when it comes to Judges versus Ambassadors / Officers.

That said, while I agree then that a change to this tradition is undoubtedly in tension with the Constitution, I am left wondering what anyone can do about it. What authority exists to insist that Senators must not take into account ideological / policy factors when casting their votes for judicial nominees?

Maybe this ends up being one of those areas in which the Senators themselves have to do the "constitutional thing" as part of their oaths of office. I think we agree that justiciability principles would not reach an adjudication of this issue. Or maybe we don't...

So I guess that's why I've been making political arguments rather than legal ones. Asserting that what the Senators are doing -- worse when they're filibustering -- is "unconstitutional" may well be a political way -- the only way -- to get them to stop.

Oh, and my use of the word "nutty" in my earlier response was certainly not directed toward you, in case that was taken the wrong way...


Charles Iragui said...

J. Li,

Definitely no offense had been taken! Thanks for commenting.

I think there is growing consensus that, since not all constitutional questions can be adjudicated, the Supreme Court cannot be the sole interpretor/upholder of the Constitution. This would seem to mean that all branches are dutybound to act, without threat of legal action, in a manner in accord with the apparent structure of the Constitution, to which, as you point out, the officeholders have sworn allegiance.

You must be right that the only other check on these officeholders' behavior is the political process. The (temporary?) resolution of the judicial filibuster issue last May vindicates the faith one might place in politics to itself restrain grabs for power.

I suspect that politics will push Senators away from raw policy votes on judicial nominees as well. And this will, in my opinion and yours to I think, support the constitutional framework of presidential nomination and appointment.