ADVICE AND CONSENT TO SUPREME COURT NOMINATIONS

The proper scope of the senate's role in confirming Supreme Court nominees has been the subject of recurring and often heated debate. The Constitution provides simply that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court." Although the Senate also has the constitutional responsibility of advising on and consenting to presidential appointments of ambassadors, lower federal court judges, and many executive branch officials, debates over the nature of the Senate's role have generally arisen in the context of Supreme Court nominations.

The central issues of controversy have concerned the criteria the Senate should consider in making confirmation decisions and the appropriate range of questions that may be posed to and answered by a nominee. Debated points regarding appropriate criteria for confirmation have included the degree to which the Senate should defer to the President's preferred choice and whether it is appropriate to take a nominee's political views or judicial philosophy into account. The debate about the scope of questioning has centered on whether it is appropriate for senators to ask and nominees to answer questions about the nominee's political views and judicial philosophy and how these views and philosophy would apply to issues that may come before the Court.

Presidents and some members of the Senate have argued that selecting Justices is the President's prerogative and that, although the President may take a judicial prospect's philosophy into account, the Senate must limit its inquiry to whether the nominee has the basic qualifications for the job. These commentators maintain that the Senate should defer to the President's nomination of any person who is neither corrupt nor professionally incompetent. Others have contested this view and argued that the Senate, when it decides whether to consent to a nomination, is permitted to take into account the same range of considerations open to the President and to make its own independent determination of whether confirmation of a particular nominee is in the best interests of the country.

Presidents have often taken the position that the Senate should defer to the President's choice. President richard m. nixon, for example, claimed in 1971 that the President has "the constitutional responsibility to appoint members of the Court," a responsibility that should not be "frustrated by those who wish to substitute their own philosophy for that of the one person entrusted by the Constitution with the power of appointment." This view was echoed by President ronald reagan, who asserted that the President has the "right" to "choose federal judges who share his judicial philosophy" and that the Senate should confirm Presidents' nominees "so long as they are qualified by character and competence."

Many of those who agree with Presidents Nixon and Reagan believe that the proper standard for Senate review of Supreme Court nominees is the deferential standard that the Senate has typically accorded to presidential nominations of executive officials, whose confirmation is generally expected unless the nominee is found to lack the character or competence necessary for the job. This analogy between executive and judicial appointments is not wholly apt. Whereas the President is entitled to have in the executive branch officials who share the President's philosophy and will carry out the chief executive's policies, judicial nominees are expected to exercise independent judgment. Those favoring a more active Senate role in the judicial confirmation process suggest that the proper analogy is to the Senate's role in ratifying or rejecting treaties or to the President's decision to sign or veto legislation—instances in which an independent exercise of judgment by each branch is thought appropriate.

The consideration of the appointments clause by the constitutional convention of 1787 offers some support for the position that senators should exercise their own independent judgment about whether to confirm a nominee. The convention considered the issue of judicial appointments separately from its consideration of the appointment of executive officers. For much of the summer of 1787, the evolving drafts of the Constitution gave the Senate exclusive authority to appoint judges. Suggestions for giving the appointing authority to the President alone rather than to the Senate were soundly defeated.

On May 29, 1787, the convention began its work on the Constitution by taking up the virginia plan, which provided "that a National Judiciary be established … to be chosen by the National Legislature.…" Under this plan, the executive was to have no role at all in the selection of judges. When this provision came before the Convention on June 5, several members expressed concern that the whole legislature might be too numerous a body to select judges. james wilson's alternative providing that the President be given the power to choose judges found almost no support, however. john rutledge of South Carolina stated that he "was by no means disposed to grant so great a power to any single person." james madison agreed that the legislature was too large a body, but stated that "he was not satisfied with referring the appointment to the Executive." He was "rather inclined to give it to the Senatorial branch" as being "sufficiently stable and independent to follow their deliberate judgments."

One week later on June 13, Madison rendered his inclination into a formal motion that the power of appointing judges be given exclusively to the Senate rather than to the legislature as a whole. This motion was adopted without objection. On July 18 the convention reconsidered and reaffirmed its earlier decision to grant the Senate the exclusive power of appointing judges. James Wilson again moved "that the Judges be appointed by the Executive." His motion was defeated, six states to two, after delegates offered, as gunning bedford of Delaware said, "solid reasons against leaving the appointment to the Executive." luther martin of Maryland, stating that he "was strenuous for an appointment by the 2nd branch," argued that "being taken from all the States [the Senate] would be the best informed of character and most capable of making a fit choice." roger sherman of Connecticut concurred, "adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d branch, than by the Executive." nathaniel gorham of Massachusetts argued against exclusive appointment by the Senate, stating that "public bodies feel no personal responsibility, and give full play to intrigue and cabal." He offered what was to be the final compromise: appointment by the Executive "by and with the advice and consent" of the Senate. At this point in the convention, however, his motion failed on a tie vote.

The issue was considered once again on July 21. After a debate in which george mason attacked the idea of executive appointment as a "dangerous prerogative [because] it might even give him an influence over the Judiciary department itself," the convention once again reaffirmed exclusive Senate appointment of judges of the Supreme Court. Thus the matter stood until the closing days of the convention. On September 4, less than two weeks before the convention's work was done, a committee of five reported out a new draft providing for the first time for a presidential role in the selection of judges: "The President … shall nominate and by and with the advice and consent of the Senate shall appoint Judges of the Supreme Court." Giving the President the power to nominate judges was not seen as tantamount to ousting the Senate from a central role. gouverneur morris of Pennsylvania, a member of the Committee, paraphrased the new provision as one that retained in the Senate the power "to appoint Judges nominated to them by the President." With little discussion and without dissent, the Convention adopted this as the final language of the provision. Considering that the convention had repeatedly and decisively rejected any proposal to give the President exclusive power to select judges, it is unlikely that the drafters contemplated reducing the Senate's role to a ministerial one.

During the nineteenth century, the Senate took a broad view of the appropriate criteria to govern "advice and consent" decisions. During this period, the Senate rejected more than one of every four Supreme Court nominations. The Senate first rejected President george washington's nomination of John Rutledge. The Senate went on to reject five of the nominees proposed by President john tyler and three of the four nominees put forward by President millard fillmore. Since 1900, however, the rate of senatorial rejection of Supreme Court nominees has dropped sharply to a twentieth-century rejection rate of a mere one in thirteen.

Virtually all the parties to the twentieth-century debate on appropriate confirmation criteria agree on two threshold issues. The first is that it is appropriate for senators to consider "judicial fitness." No one contests that adequate judicial competence, ethics, and temperament are necessary conditions for confirmation and, therefore, appropriate criteria for senators to consider. The publicly stated bases of opposition to the nominations of louis d. brandeis, Judge Clement F. Haynsworth, and Judge George H. Carswell were presented in terms of these threshold, judicial-fitness criteria.

The unsuccessful opposition to Brandeis, nominated in 1916 by President woodrow wilson, based its public case against the nominee on alleged breaches of legal ethics. The successful opposition to confirmation of Judge Haynsworth, nominated to the Supreme Court by President Nixon in 1969, was articulated primarily in terms of charges that Haynsworth had violated canons of judicial ethics by sitting on cases involving corporations in which he had small financial interests. In addition to the ethics charges, some opponents raised objections to Haynsworth's civil rights record. Two judicial-fitness objections formed the basis for the successful opposition to confirmation of Judge Carswell, nominated to the Supreme Court by President Nixon in 1970. The primary objection was that Carswell allegedly allowed racial prejudice to affect his judicial behavior. The second theme in the opposition to Carswell was that, as a matter of basic competence, he was at best a mediocre jurist.

Thus, in the Brandeis, Haynsworth, and Carswell nominations, opposition was presented as based on the judicial-fitness criteria of judicial temperament, ethics, and basic competence. In all three of these twentieth-century confirmation controversies, the acceptability of the judicialfitness criteria went unchallenged.

The second area of general agreement in the debate on appropriate criteria for confirmation decisions is that senators should not base their decisions on the nominee's predicted vote on a particular case or "single issue" likely to come before the Court. Supporters of the nomination of Judge John Parker, nominated to the Supreme Court by President herbert hoover in 1930, alleged that opposition to the nomination was based on a "single issue" of Parker's position on a particular labor-law question. Parker's opponents took pains to deny that their opposition was based on a single issue and argued that Parker's ruling in a previous case involving the question reflected Parker's own anti-union bias. This accusation—that, as a judge, Parker was biased in his rulings on such matters—was a way for the opponents of confirmation to frame their objection as one of judicial temperament and, thus, judicial fitness. The premise underlying the positions of both opponents and supporters of Parker was that a rejection based on a result-oriented single-issue criterion would be inappropriate.

Between the margins of agreement that judicial-fitness criteria are appropriate and that single-issue criteria are inappropriate lies the area of controversy. The debated issue is often framed as whether the nominee's "judicial philosophy" should be considered in the decision-making process. The term "judicial philosophy," when used in this context, refers to a range of concerns including the nominee's theory of judging (that is, the degree of judicial interference with legislative and executive decision making the nominee views as appropriate), the nominee's views on the level of generality at which constitutional provisions should be interpreted, and the nominee's interpretation of specific constitutional clauses or doctrines (such as the applicability of the equal protection clause to women or the existence of a constitutional right of privacy).

The bases of opposition to President lyndon b. johnson's 1968 nomination of Justice abe fortas (to be Chief Justice) and to President Reagan's nomination of Judge Robert Bork to the Supreme Court were framed largely in terms of these controversial "judicial philosophy" criteria. Consequently, the confirmation battles in these cases raged as much around the appropriateness of the criteria applied as around the merits of the nominees themselves.

The attack on Fortas's judicial philosophy was based on charges that he was a "judicial activist" (meaning that his theory of judging envisioned excessive intervention in the discretion of the elected branches) and that his substantive interpretations (of the First, Fifth, Sixth, and Fourteenth amendments) were flawed. Supporters of the Fortas nomination responded both on the merits—defending Fortas's theory of judging and his substantive interpretations—and by assailing the judicial philosophy criterion as inappropriate considerations for advice and consent decisions. (Although some ethics charges were raised during the confirmation proceedings, the very serious ethics charges that resulted in Fortas's resignation did not arise until the spring of 1969, during the Nixon presidency, many months after President Johnson had withdrawn his nomination of Justice Fortas to become Chief Justice.)

Like the Fortas nomination, the nomination of Judge Robert Bork to the Supreme Court was opposed largely on judicial philosophy grounds. (Although some critics raised ethics issues, including Bork's role in the "Saturday Night Massacre" in which the special prosecutor in the watergate affair was fired, these issues did not form a primary basis of opposition.) Judge Bork's theory of judging was assailed as an inadequate conception of the proper role of the Supreme Court in protecting individual and "unenumerated" constitutional rights. Objections were also presented in terms of Bork's interpretations of specific constitutional clauses and doctrines, including his position on the existence of a constitutional right to privacy, his previous and contemporaneous interpretations of the equal protection clause as regards the protections afforded to women, his interpretations of the first amendment's free speech clause, and his positions on civil rights. Much of the defense of Judge Bork took the form of challenging the acceptability of these controversial criteria.

The contours of the areas of agreement and disagreement on appropriate advice-and-consent criteria are not surprising. The debate on appropriate criteria follows from the constitutional provisions that structure the process of appointments to an independent, principle-oriented, countermajoritarian judiciary in a way that requires the consent of an elected, representative, majoritarian body. Senators' views about the proper role of the judiciary inform their positions on the relevance and propriety of each category of advice-and-consent criteria.

A foundational precept of the role of an independent judiciary is that judges must render decisions based on the rigorous application of principles, not their personal preferences, much less their biases. The broad agreement about this precept underlies and is reflected in the broad consensus that judicial fitness is an acceptable category of criteria for consent decisions. Competence in legal reasoning, high ethical standards, and unbiased judicious temperament are prerequisites to the consistent rendering of rigorously reasoned and principled decisions of law.

The same precept—that the essence of the judicial function is to render decisions based on principles—underlies the broad consensus that single-issue result-oriented criteria are unacceptable. Because of the principle-based nature of the judicial function, a judicial nominee must be evaluated on the basis of the anticipated process of his or her application of principles, regardless of whether that process will produce a senator's preferred outcome in any particular case. The ability of elected Presidents and elected senators to exert some general influence on the future course of the nation's jurisprudence is an appropriate (and appropriately limited) popular check on the exercise of the power of judicial review, without which this institution might not be acceptable in a constitutional democracy. Nonetheless, for Presidents or senators to demand that the judiciary not render decisions based on principle but, rather, act as an agent of the legislature furthering particular preferences, and for senators to enforce this demand by the threat or reality of nonconfirmation, would subvert the independence of the judiciary and violate the spirit of the separation of powers.

Rather than a continued focus on the appropriate criteria for advice-and-consent decisions, a different aspect of the debate over the appropriate role of the Senate in the confirmation process came to the fore during consideration of the nomination of Justice david h. souter. Souter's views on controversial judicial and political issues were little known. The prominent questions during the Souter confirmation, therefore, were (1) where relatively little is known about the nominee's thinking, how may the Senate properly learn more about the nominee; and (2) what questions may properly be posed to the nominee during the confirmation hearings? These questions are not merely derivative of the larger question of what decision-making criteria are legitimate. The core objection to direct questions to the nominee—even on issues that might constitute legitimate decision-making criteria, such as substantive interpretation of particular constitutional clauses—is that, by offering an opinion on such issues, the nominee may thereafter feel bound to hold in subsequent cases in a manner consistent with the opinions stated during the confirmation hearings. Thus, the fear is that the nominee who opines on, say, the level of protection afforded to women by the equal protection clause during the confirmation hearing will, in effect, be "committed" to a certain outcome in future cases involving that issue.

But fear of judicial precommitment may be exaggerated. Surely there is no requirement that the individuals nominated to our highest court have never thought about—or reached tentative conclusions on—the important issues of law that face the country. So the only issue is whether sharing those thoughts with the senators during confirmation hearings would constitute a commitment not to change those views or not to be open to the arguments of parties litigating those issues in the future. There is no reason to believe that a statement of opinion during confirmation would constitute such a commitment. It would seem reasonable to suppose that an opinion mentioned during a confirmation hearing would be seen as not binding if it were generally understood that such statements are not binding. It would seem reasonable that a nominee might preface an opinion on such an issue with a statement that "these are my initial views on the issue, but they would certainly be open to change in the context of a case in which persuasive arguments were put forth by the parties." Justices would not be in any way committed to be "consistent" with their confirmation comments if it were understood that confirmation comments constitute nothing more and nothing less than frank statements by nominees of their best thinking on a particular issue to date.

Madeline Morris

Walter Dellinger
(1992)