Over a year after President Bush nominated his first group of circuit court judges, only two have been confirmed. Most have not even received a hearing, yet the number of vacancies on the federal bench has grown to crisis proportion. Chief Justice William Rehnquist recently complained of an "alarming number of judicial vacancies," creating a real strain on the courts.1 Even Senator Patrick Leahy, who, as Chairman of the Senate's judiciary committee is largely responsible for the current logjam, previously referred to a judicial vacancy "crisis" when the number of vacancies on the bench was about half what it is today, contending that those who delay or prevent the filling of vacancies were "derelict[ in their] duty," and delaying or preventing the administration of justice.2
More fundamentally, the judicial vacancy crisis is threatening to hamper the ability of the courts to perform their primary role as an important check on the elected branches of government, protecting individual rights against tyrannical majorities, and insuring that the legislative and executive branches do not exceed the scope of authority delegated to them by the Constitution. As James Madison noted two years before the Constitutional Convention, the "Judiciary Department merits every care" because it "maintains private Right against all the corruptions of the two other departments...."3
Of course, Senator Leahy and his Democrat colleagues in the Senate claim that they are simply fulfilling their own constitutional obligation to give "advice and consent" to the President in the nomination process and to insure that those nominees who are "hostile" to their view of what the law ought to be are not confirmed to lifelong seats on the bench. The resulting standoff reveals important differences of opinion over the role of the Senate in the appointment process. But that disagreement in turn masks a profound division over the proper role of government in general, and even the very notion of the rule of law. As is often the case, it is well to begin with a review of the founders' understanding of the process in assessing this disagreement.
I. The Framers of the Constitution Assigned to the President the Pre-Eminent Role in Appointing Judges.
A. The President Alone Has The Power to Nominate
Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish]."4 As the text of the provision makes explicitly clear, the power to choose nominees — to "nominate" — is vested solely in the President,5 and the President also has the primary role to "appoint," albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one that is currently being claimed.
The lengthy debates over the clause in the Constitutional Convention support this reading. According to Madison's notes, an initial proposal on July 18, 1787, to place the appointment power in the Senate was opposed because, as Massachusetts delegate Nathaniel Ghorum noted, "even that branch [was] too numerous, and too little personally responsible, to ensure a good choice."6 Ghorum suggested instead that Judges be appointed by the President with the advice and consent of the Senate, as had long been the method successfully followed in his home state. James Wilson and Governeur Morris of Pennsylvania, two of the Convention's leading figures, agreed with Ghorum and moved that judges be appointed by the President.
In contrast, Luther Martin of Maryland and Roger Sherman of Connecticut argued in favor of the initial proposal, contending that the Senate should have the power because, "[b]eing taken fro[m] all the States it [would] be best informed of the characters & most capable of making a fit choice."7 And Virginia's George Mason argued that the President should not have the power to appoint judges because (among other reasons) the President "would insensibly form local & personal attachments...that would deprive equal merit elsewhere, of an equal chance of promotion."8
Ghorum replied to Mason's objection by noting that the Senators were at least equally likely to "form their attachments."9 Giving the power to the President would at least mean that he "will be responsible in point of character at least" for his choices, and would therefore "be careful to look through all the States for proper characters." For him, the problem with placing the appointment power in the Senate was that "Public bodies feel no personal responsibility, and give full play to intrigue & cabal,"10 while if the appointment power were given to the President alone, "the Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone."11
Seeking a compromise, James Madison suggested that the power of appointment be given to the President with the Senate able to veto that choice by a 2/3 vote.12 Another compromise was suggested by Edmund Randolph, who "thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal."13 These compromises were defeated, however, and the vote on Ghorum's motion — that the President nominate and with the advice and consent of the Senate, should appoint — resulted in a 4-4 tie.14 The discussion was then postponed.
When the appointment power was taken up again on July 21, the delegates returned to their previous arguments. One side argued that the President should be solely responsible for the appointments, because he would be less likely to be swayed by "partisanship" — what Madison's generation called "faction"15 — than the Senate. The other side opposed vesting the appointment power in the President for a similar reason: he would not know as many qualified candidates as the Senate would, and might still be swayed by personal considerations or nepotism.
The convention delegates were primarily concerned about improper influence in the appointments process, and most of the debate centered on whether assigning the appointment power to the President or to the Senate would serve as a better check on that influence. Those who, like Madison, argued that the President should have the sole power of appointment believed that this procedure would best prevent such political bargaining. As Edmund Randolph noted, "[a]ppointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications."16 But those who opposed this idea, and instead wanted the Senate to have the power of appointment, did not argue that the Senate should have the power in order to control the development of case law or regulate judicial philosophy. Instead, they feared that the President would be "more susceptible to caresses & intrigues than the Senate," as Oliver Ellsworth of Connecticut contended.17
In the end, the Convention agreed that the President would make the nominations, and the Senate would have a limited power to withhold confirmation as a check against political patronage or nepotism. Governeur Morris put the decision succinctly: "as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security."18 As the Supreme Court subsequently recognized, "the Framers anticipated that the President would be less vulnerable to interest — group pressure and personal favoritism than would a collective body."19 No one argued that the Senate's participation in the process should include second-guessing the judicial philosophy of the President's nominees or attempting to mold that philosophy itself. Indeed, such a suggestion was routinely rejected as presenting a dangerous violation of the separation of powers, by allowing the Senate to control the President's choices and, ultimately, intrude upon the judiciary itself.
Madison, for instance, arguing in defense of his suggested compromise — that a 2/3 vote of the Senate could disqualify a judicial nomination, but otherwise giving the President a free hand — noted that
The Executive Magistrate wd be considered as a national officer, acting for and equally sympathizing with every part of the U. States. If the 2d branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States.... 20
In short, by assigning the sole power to nominate (and the primary power to appoint) judges to the President, the Convention specifically rejected a more expansive Senate role; such would undermine the President's responsibility, and far from providing security against improper appointments, would actually lead to the very kind of cabal-like behavior that the Convention delegates feared.
This understanding of the appointment power was reaffirmed during the ratification debates. In Federalist 76, for example, Alexander Hamilton explained at length that "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment."21 Noting that a President would "have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number,"22 — or as we would say today, that the President will be swayed by fewer political pressure groups than the Senate — Hamilton concluded:
In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.23
Note the very limited role that the Senate serves in Hamilton's view — which, of course, echoes the views expressed at the Constitutional Convention by both those who defended and those who opposed giving the appointment power to the President. In the founders' view, the Senate acts as a brake on the President's ability to fill offices with his own friends and family members rather than qualified nominations, but beyond that, the element of choice — the essence of the power to fill the office — belongs to the President alone. The Senate has the power to refuse nominees, but in the Constitutional scheme it has no proper authority in picking the nominees — either through direct choice or through logrolling and deal-making.
Hamilton was not so ignorant as to deny that deal-making would be the process by which things got done in the Senate — as he writes, legislatures are very often prone to "bargain[s]" by which one party says to another, "'Give us the man we wish for this office, and you shall have the one you wish for that.'"24 But this legislative propensity was, for Hamilton, a primary reason for giving the appointment power to the President instead of the Senate. Placing the nomination power in the President alone would, he argued, cut down on the degree to which political bargains in the Senate influenced the choice of candidates, because under the Constitutional scheme, all would understand that the power of appointment belonged in the President alone. That understanding, as we shall see, has been eroded in recent years.
Commenting on the prevailing understanding, Joseph Story later described the President's power to nominate as almost absolute. "The president is to nominate," Story noted, "and thereby has the sole power to select for office."25 Story believed that the danger of vesting the appointment power in the Senate was greater than the danger of giving the power to the President alone, because "if he should...surrender the public patronage into the hands of profligate men, or low adventurers, it [would] be impossible for him long to retain public favour.... At all events, he would be less likely to disregard [public disapprobation] than a large body of men, who would share the responsibility and encourage each other in the division of the patronage of the government."26
B. The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.
Of course, there is more to the appointment power than the power to nominate, and the Senate unquestionably has a role to play in the confirmation phase of the appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that would not undermine the President's ultimate responsibility for the appointments he made. As James Iredell — later a Justice of the Supreme Court himself — noted during the North Carolina Ratification Convention, "[a]s to offices, the Senate has no other influence but a restraint on improper appointments.... This, in effect, is but a restriction on the President."27
The degree to which the founders viewed the power of appointment as being vested solely in the President can be gauged by the fact that John Adams objected even to the Senate's limited confirmation role, contending that it "lessens the responsibility of the president." To Adams, the President should be solely responsible for his choices, and should alone pay the price for choosing unfit nominees. Under the current system, Adams complained, "Who can censure [the President] without censuring the senate...?"28 The appointment power is, Adams wrote, an "executive matter," which should be left entirely to "the management of the executive."29 James Wilson echoed this view: "The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune, should be responsible. He should be alike unfettered and unsheltered by counsellors."30
In discussing the analogous situation of executive appointments — such as ambassadors or cabinet members — James Madison asked, "Why...was the senate joined with the president in appointing to office...? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of the candidates than an individual; yet even here, the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced upon him as an assistant by any other branch of government."31
The Senate's confirmation power therefore acts only as a relatively minor check on the President's authority — it exists only to prevent the President from selecting a nominee who "does not possess due qualifications for office."32 Essentially, it exists to prevent the President from being swayed by nepotism or mere political opportunism.33 Assessing a candidate's "qualifications for office" did not give the Senate grounds for imposing an ideological litmus on the President's nominees, at least where the questioned ideology did not prevent a judge from fulfilling his oath of office.
C. Ideology Was Not Considered A Proper Reason for Refusing Confirmation, As Long As It Did Not Prevent The Nominee From Fulfilling The Judicial Oath.
In the founders' view, then, the Senate's power in the confirmation of judicial appointees was extremely limited. It existed solely to prevent the President from exercising his power in an improper manner. Ideology — at least ideology of the kind that is unrelated to a candidate's ability to fulfill his oath of office — simply had no place in the Senate's decision. As Hamilton wrote, "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice he may have made."34 It was not that the founders believed the political views of judges were irrelevant; they were not that naÃ¯ve. But in their view, the President was alone responsible for his appointments, and, in turn, the ideology of those he appointed.35
There is, of course, an early case that suggests the Senate believed that it was appropriate to reject nominees because of their political ideology. In 1795, John Rutledge of South Carolina, former delegate to the Constitutional Convention, was nominated by President Washington to be Chief Justice of the United States. Although Rutledge took his seat and presided over two cases, he was never confirmed.
Rutledge was a vocal opponent of the controversial Jay Treaty, negotiated by President Washington's envoy to England — and first Chief Justice of the United States — John Jay.36 Shortly after his nomination, Rutledge delivered an emphatic and somewhat imprudent attack on the Treaty, which was supported by the Federalist majority in Congress. Rutledge's appointment was rejected shortly thereafter on December 15, 1795, almost immediately after Congress resumed its work after a recess.37 Although the Senate's refusal to confirm Rutledge might in part be due to questions about his mental stability,38 his opposition to the Jay Treaty undoubtedly played an important role in the vote. Thomas Jefferson complained privately that "[t]he rejection of Mr. Rutledge by the Senate is a bold thing; because they cannot pretend any objection to him but his disapprobation of the treaty. It is, of course, a declaration that they will receive none but tories hereafter into any department of the government."39
Jefferson's supporters in Congress responded in kind after Jefferson was elected President. Attempting to expand Jefferson's own control over the courts beyond what was permitted in the normal course of filling vacancies, the Jeffersonian Republicans brought articles of impeachment against Supreme Court Justice Samuel Chase, a Federalist opponent of the administration.40 Jefferson's supporters in Congress had been successful in impeaching New Hampshire District Judge John Pickering for bad behavior — Pickering was insane41 — but success in impeaching him emboldened members of Jefferson's party to impeach Justice Chase, who had been appointed in 1796 by John Adams, and had attempted to enforce the notorious Sedition Act.42 Articles of impeachment against Chase were drawn up by Virginia Congressman John Randolph of Roanoke,43 who was immediately challenged on the floor of the House. "[T]he streams of justice should be preserved pure and unsullied," said one Congressman:
The Judicial department ought to attach to itself a degree of independence. I am of opinion that this House possesses no censorial power over the Judicial department generally, or over any judge in particular. They have alone the power of impeaching them; and when a judge shall be charged with flagrant misconduct...I shall be at all times prepared to carry the provisions of the Constitution into effect, in virtue of which great transgressors are punishable for their crimes.... If the resolution pass in its present form, it appears to me that we shall thereby pass a vote of censure on this judge, which neither the Constitution nor laws authorize.44
Popular outcry against Chase's impeachment was swift. "The simple truth is," one newspaper said, that "Mr. Jefferson has been determined from the first to have a judiciary, as well as a legislature, that would second the views of the executive."45 "I am afraid," said another Congressman, "that unless great care be taken the doctrine of judicial independence will be carried so far as to become dangerous to the liberties of the country."46 Randolph insisted that he was not seeking impeachment for ideological reasons but based on Chase's bad behavior. In a charge to a grand jury in a Sedition Act case in Baltimore, Chase had let fly with a political screed against the Jefferson Administration, and supporters of impeachment argued that this demonstrated Judge Chase's own ideological bias.47 Yet few were persuaded. To the Federalists, the Chase impeachment was motivated purely by the political ideology of the Jeffersonians. As John Quincy Adams wrote in his diary, "this was a party prosecution."48
The Senate ultimately voted not to convict Justice Chase, and the Congress backed away from the ideological litmus test that threatened the independence of the judiciary. As one commentator has noted, "[a]t that early stage of the republic, a successful impeachment of a Supreme Court Justice innocent of criminal activity probably would have left the judicial branch of the federal government forever dependent on the legislative."49 As a result, the use of impeachment to enforce political orthodoxy on the Supreme Court was abandoned. In 1970, when then-Congressman Gerald Ford denounced Justice William O. Douglas on the floor of the House and called for his impeachment, the suggestion was doomed from the start.50
II. The Current State of the Confirmation Power.
A. Why Ideology Matters to The Left.
Despite the original understanding of the Senate's limited role in the confirmation process, and despite the lessons learned from these early historical flirtations with the use of political ideology as a criteria for judicial qualification, the Senate today appears bent on using its limited confirmation power to impose ideological litmus on presidential nominees and even to force the President to nominate judges preferred by individual Senators, thus arrogating to itself the nomination as well as the confirmation power.
The Senate's expanded use of its confirmation power should perhaps come as no surprise. As a result of the growing role of the judiciary — and of government in general — in the lives of Americans today, the Senate's part in the nomination process has become a powerful political tool, and, like all powerful political tools, it is the subject of a strenuous competition among interest groups every time the President seeks to fill a judicial vacancy. Moreover, it is a tool that poses grave dangers to our constitutional system of government. In its current manifestation, the Senate's ideological use of the confirmation power threatens the separation of powers by undermining the responsibility for appointments given to the President, by demanding of judicial nominees a commitment to a role not appropriate to the courts, and, perhaps most importantly, by threatening the independence of the judiciary.
The reason that some Senators are so intent on delving into the judicial philosophy of nominees is deeply connected to their view of the proper role of the judiciary in American government. Viewing the Constitution as a "living document," modern-day liberals see the Court as a place where the Constitution is stretched, shaped, cut, and rewritten in order to put in place so-called "progressive" policies that could never emerge from the legislative process. Of course, the Constitution is based on a profoundly different notion of law than is modern liberalism, and it is no wonder, therefore, that President Franklin D. Roosevelt, the godfather of the Welfare State that lies at the center of modern liberalism, found it necessary to resort to the highly questionable "Court-packing plan" of 1936 in order to enforce his "vision" of a new political order. The Constitution simply was not designed to accommodate such things as the massive redistributions of wealth that Roosevelt was proposing — in fact, it was designed precisely to prevent such things.51 As Rexford Tugwell, one of the principal architects of the New Deal, admitted, "To the extent that [the New Deal policies] developed, they were tortured interpretations of a document intended to prevent them."52 So the Constitution was essentially re-written by interpretation, culminating in the great "Switch in Time That Saved Nine," in which centuries of precedent were reversed and the Constitution stretched and torn out of shape to accommodate the New Deal programs.53
Judicial ideology is therefore critically important to modern-day liberals because an honest reading of the Constitution reveals that it is incompatible with their scheme of government. Senator Schumer, for example, has been quite candid in acknowledging that his opposition to President Bush's judicial nominees is based on the fact that they respect and will enforce the Constitution's limitations on the power of Congress. "Elected officials," Senator Schumer told the press on May 9, 2002,
should get the benefit of the doubt with respect to policy judgments and courts should not reach out to impose their will over that of elected legislatures.... Many of us on our side of the aisle are acutely concerned with the new limits that are now developing on our power to address the problems of those who elect us to serve — these decisions affect, in a fundamental way, our ability to address major national issues like discrimination against the disabled and the aged, protecting the environment, and combating gun violence.54
This is not to say that ideology should never play a role in the confirmation process. Some ideologically-based views render it impossible for a nominee who holds them to fulfill his oath of office. Consider, for instance, Judge Harry Pregerson, who, when he was nominated to the Court of Appeals for the Ninth Circuit by President Carter, was asked whether he would follow his conscience or the law, if the two came into conflict. "I would follow my conscience," he replied.55 That statement, grounded in Pregerson's own ideology, should easily have been grounds for disqualification, yet Pregerson was not only confirmed to the bench, but roundly praised for this statement, despite the fact that it threatens to undermine the very essence of constitutionalism and the rule of law.56
Contrast this with Justice Antonin Scalia, who in a recent speech said that he was glad the Pope had not declared the Catholic Church's opposition to the death penalty a matter of infallible Church doctrine, because if the Pope had done so, Justice Scalia would, as a practicing and committed Catholic, feel compelled to resign, unable to abide by his oath to enforce the law. In his view,
the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own.... This dilemma, of course, need not be confronted by a proponent of the "living Constitution," who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the "living Constitution" has such attraction for us judges.)57
Ideology understood in this light is of course relevant in selecting a judicial nominee Broadly understood, "ideology" would encompass a nominee's honor and character, which are necessary to fulfill the oath of office.58 A nominee who for ideological reasons cannot "support and defend the Constitution of the United States" — say, an agent working for the Taliban — would be unfit for office because he would lack the qualifications necessary for the position. In fact, although we tend to take the concept of an oath lightly today, James Madison wrote that under the Constitution, "the concurrence of the Senate chosen by the State Legislatures, in appointing the Judges, and the oaths and official tenures of these, with the surveillance of public Opinion, [would be] relied on as guarantying their impartiality...."59 This is very different than demanding of a nominee that he toe the line of leftist jurisprudence.
Today, Senators inquire into a nominee's ideology for precisely the opposite reason: to ensure that the nominee will not abide by the Constitution — to ensure that he will stretch and bend the Constitution in the directions that the Senator prefers.
On top of the danger that this presents to the fair resolution of controversies in Constitutional law, it presents a great danger to another vital principle of American government: separation of powers. In Federalist 78, Alexander Hamilton declared the judiciary the "least dangerous branch" of the new federal government. "[T]he general liberty of the people can never be endangered" by the judiciary, he wrote, "so long as the judiciary remains truly distinct from both the legislature and the Executive.... [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments," and "all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation."60 The enforcement of political orthodoxy on the bench is creating precisely this dependence, strengthened even more by judicial "deference" to Congressional acts that exceed the limited scope of the federal government's Constitutional powers.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution," wrote Hamilton. The courts alone could "declare all acts contrary to the manifest tenor of the Constitution void."61 But the current attempt to block judges who believe in limited government is not motivated by a desire to maintain inviolate the "exceptions to the legislative authority." It is motivated by a desire to ensure that the judiciary will interpret the Constitution in a way most suited to extend that legislative authority as far as possible.
What that essentially means is that the current attempt to use the Senate's confirmation power to regulate the ideology of judges is part of an overall trend which is turning the judiciary into a second legislative branch. The fundamental differences between the legislative and the judicial branch is that in the former, parties lobby, contend, vote, and decide on procedures that may infringe on the private rights of individuals. The courts are supposed to act as a "countermajoritarian" mechanism to ensure that the legislature does not engage in "the invasion of private rights...from acts in which the Government is the mere instrument of the major number of the constituents."62 The very existence of the judiciary is premised on the fact that the majority is not always right. Allowing the Senate — elected by the majority — too great a hand in regulating the federal bench risks eroding the judiciary's power to perform this most crucial task.
B. The Dangerous Techniques of Today's Judicial Confirmation Process.
One of the most disturbing manifestations of the new process is the growing tendency of the Senate to refuse even to hold hearings for nominees. This practice suggests not that the nominees are too far outside the ideological mainstream to be confirmed, but rather that the Senators fear to vote down the nominees on ideological grounds, precisely because they are not outside the ideological mainstream.
Even those who argue that the Senate should take a large role in molding the judiciary must acknowledge that blocking nominations by refusing to hold hearings is an inappropriate tactic. The Senate has the power to advise and consent to a President's nominees. The refusal to hold hearings at all is not advise or consent; it is political blackmail which perpetuates the critical number of vacancies on the federal bench. In fact, as one author has noted, Senatorial inaction is contrary to a resolution passed by the very first Senate in 1789, which declared that "when nominations shall be made in writing by the President of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration...and the Senators shall signify their assent or dissent by answering, viva voce, ay or no."63
It is very important to note an interesting claim made by Senate Democrats in defense of their refusal to hold hearings on President Bush's nominees. Many of them — for instance, Senator Leahy — argue that they have actually confirmed quite a lot of judges, and that Republicans are simply lying when they complain about the slow pace of Senator Leahy's Judiciary Committee.64 But in fact, most of the judges that have been confirmed are district court judges, a very important component of the judicial system, to be sure, but not the final word on the law, the way Circuit Judges are in the vast majority of cases. Of the eleven circuit court nominees President Bush made on May 9, 2001 — more than a full year ago — only four have received hearings. Two of these, Judges Barrington Parker Jr. and Roger Gregory, were confirmed almost immediately65 because they were Clinton nominees, whom President Bush re-nominated in a show of bipartisanship. The others, Judges Charles Pickering and Judge D. Brooks Smith, waited over a year for their hearings, and then were given hearings only after far-left interest groups thought they had dug up enough dirt to scuttle the nominations.
Even taking Democrats at their word that their refusal to confirm President Bush's nominees is an exercise of legitimate Congressional power to protect us from diabolical judges, one cannot justify the refusal to hold hearings. If these judges are so dangerous, Congress should hold the hearings and vote them down. But the fact is that these judges are in general unobjectionable characters and outstanding legal minds. Democrats refuse to hold hearings precisely because, if they did so, it would become clear that the Democrats have no legitimate objections to them. The delays are meant as a starvation campaign — or, worse, to bide time for liberal interest groups to discover (or invent) grounds for objecting to the nominees.
Another dangerous change that has occurred in the confirmation procedures involves the so-called "blue slip" policy — the practice whereby home state Senators are essentially given a veto power of the President's nominees to positions in that state.66 Although the policy has always been constitutionally suspect67 — the advice and consent power is given to the Senate as a body, not to individual Senators — it at least had natural limits as it has been exercised historically. A Senator who went to the blue slip well too often could easily find that the President simply nominated a judge from another State in the Circuit. Not so with the current, expended blue slip policy. Now, Senators essentially have a veto power over any nominee from the entire circuit in which their state is located. Not surprisingly, without the check that was built in to the original policy, the blue slip has become a much more favored tool for advancing a Senator's own views, further undermining the President's constitutional role in appointments.
Ironically, Senatorial inaction toward judicial nominations came under increasing fire during the Clinton Administration, when Democrats complained that the Republican-controlled Senate was refusing to confirm President Clinton's nominees.68 Now that the tables have turned, however, Democrats are defending their inaction not only as a political game of tournabout-is-fair-play, but as a solemn duty to defend the Constitutional structure — the same structure, of course, that they have been vigorously undermining for at least seventy years.69
But inaction and the blue slip process are not the only tactics being indulged toward President Bush's nominees. Recently, Judge D. Brooks Smith received a remarkable letter from Senator Charles Schumer of New York, asking Smith
to imagine it is 1965 and you are a Supreme Court justice. The Griswold opinion has not yet been written. Chief Justice Warren turns to you in conference and asks you for your opinion on whether there is a right to privacy in the Constitution and why. He further asks you to articulate how that right, if it exists, should be applied in Griswold. Please provide your answers to those inquiries.
Schumer was, in his own words, "interested in how you personally read and interpret the Constitution."71
Senator Schumer's questions quite obviously have nothing to do with preventing nepotism, or the appointment of incompetent political cronies, by the President. Nor could it. Judge Smith has served on the District Court of Pennsylvania for the Western District since 1988, when he was appointed by President Ronald Reagan. Before that, he was a state judge, and before that a district attorney for seven years. Judge Brooks is unquestionably competent, and not related to President Bush. Nor is he a political crony.
Instead, Senator Schumer's questions serve merely to test Judge Smith's commitment to the standard of "evolving constitutionalism" advocated by Schumer and his colleagues. Senator Schumer's question is designed precisely to elicit the nominee's political ideology in an attempt to enforce political orthodoxy on the bench. Yet Schumer is not "responsible" for the nomination in the sense that the founders envisioned. Citizens throughout most of the country who might be appalled by Senator Schumer's questions cannot vote Senator Schumer out of office. While President Bush, in nominating Judge Brooks, must be, in Madison's words, "considered as a national officer, acting for and equally sympathising with every part of the U. States," Sen. Schumer is only required to serve his liberal constituency in New York, comprised of groups such as the National Organization for Women, which has targeted Judge Smith's nomination, claiming that he is "unfit" to be a Circuit Judge because he did not resign fast enough from a men's hunting club, and because, in its words, he has "ultraconservative buddies."72
Of course, Congress has the Constitutional power to create schemes for the redistribution of wealth or other interferences with individual rights — that is to say, it can propose Constitutional amendments that would authorize such action. It could propose to repeal the Constitutional protections for property rights found in the Fifth Amendment and elsewhere, by writing an amendment and submitting it to the states. But Congress knows that such an amendment would never succeed, so instead some members of Congress pursue this new method of enforcing their liberal orthodoxy from the bench.
This is essentially the difference between raw power and right. Having failed to accomplish their legal goals in the Constitutional fashion, the Senate is accomplishing them through techniques whereby judges are vetted by liberal interest groups to ensure that they will decide the "right" way on the cases that come before them. There is an interesting irony to this, however: in a sense, the Constitution already requires judges to decide the "right way" — that is, it requires judges to abide by an oath to "support and defend the Constitution." But it also requires Senators to do the same thing. Some Senators have abandoned that duty by supporting and defending a governmental scheme totally alien to that contemplated by the framers. Now those Senators are seeking to weed out any judges who might force them to abide by that duty.
In June of 2001, President Clinton's White House Counsel, Lloyd Cutler, told the Senate Judiciary Committee that "it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."73
Today the Senate is doing precisely what one delegate to the North Carolina ratification convention warned against: it is taking over the nomination power which the Constitution vested in the President alone. "[T]he President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place."74 The dangers posed by such a system are as real today as they were to the founding generation. It is time to rid ourselves of all ideological litmus tests save one: "Mr. Nominee, are you prepared to honor your oath to support the Constitution as written and not as you would like it to be, if we confirm you to this important office?" Any nominee who answers that question in the negative deserves to be rejected. Unfortunately, the Senate is today refusing a hearing to several nominees precisely because the current leadership knows that those nominees would honestly answer that question in the affirmative.