Good morning, Chairman Sensenbrenner and other members of the House Judiciary Subcommittee on the Constitution. I am delighted to be here this morning to offer some historical and constitutional perspective on the current stalemate in the Senate Judiciary Committee over confirmations of circuit court judges, its impact on the federal judiciary and, perhaps more importantly, its threat to the separation of powers.
As of yesterday, seventeen months have passed since President Bush nominated his first group of circuit court judges, only three have been confirmed. Several 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 naïve. 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 Roanoke43 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 confirmation, the Senate today appears bent on using its limited confirmation power to impose ideological litmus tests 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. Nevertheless, 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 itself.
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 or bureaucratic restrictions on individual liberty 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 a century and a half of precedent was 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 any 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, such "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 or his oath to support it to ensure, rather, 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." "[A]ll 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 demands for 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
Moreover, the current strategy of delay that appears to be the mainstay of the present Senate Judiciary Committee threatens to intrude upon the Executive's powers, in violation of core separation of powers principles. Improper attempts to impose ideological litmus tests by voting down the President's nominees could be countered by re-nomination of like-minded individuals, but the outright refusal even to hold hearings, or to refer nominees to the floor of the Senate for a vote, deprives the President of even this remedial power, eventually forcing the President to accede to demands to nominate individuals more to the liking of individual Senators. The delay tactics appear designed, then, to transfer the nomination power from the President to the Senate, a result that the founders greatly feared.64
It is very important to note an interesting claim made by some 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.65 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 seventeen months ago and counting as of yesterday only six have received hearings. Two of these, Judges Barrington Parker Jr. and Roger Gregory, were confirmed relatively quickly66 because they were Clinton nominees, whom President Bush re-nominated in a show of bipartisanship. The others, Judge Charles Pickering, Justice Priscilla Owen, Professor Michael McConnell, and former deputy Solicitor General Miguel Estrada, 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. The Senate Judiciary Committee refused, by straight party-line vote, to report Judge Pickering and Justice Owen out of committee, and it appears poised to do the same with Michael McConnell and Migual Estrada, both of whom have received unanimous well-qualified ratings from the American Bar Association. The remaining five have not even received a hearing, 519 days and counting since their nominations were first announced: John Roberts, one of the leading Supreme Court practitioners of the day, nominated to the D.C. Circuit for the second time, his nomination by the elder Bush having likewise been stalled until it died with the expiration of the Congressional session following President Bush's defeat to Bill Clinton; Terrence Boyle, nominated to the Fourth Circuit for the second time, his nomination by the elder Bush also having been stalled until it died after the 1992 election; Dennis Shedd, also nominated to the Fourth Circuit; and Deborah Cook and Jeffrey Sutton, both nominated to the Sixth Circuit.
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 or have confirmation votes by the full Senate. If these judges are so dangerous, Congress should hold the hearings and vote them down. But the fact is that these nominees are in general not just of unobjectionable character but of impeccable character, with 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 and that, in fact, they enjoy majority support in the Senate, including support by some Democrats. The delays are meant as a starvation campaign or, worse, to bide time for radical interest groups to discover (or invent) grounds for objecting to the nominees.
This tactic, too, has been previously addressed by the Senate. After Andrew Jackson defeated John Quincy Adams for President in 1828, Adams had several months as a lame duck President in which to nominate Judges to the federal bench. Because he no longer had the confidence of the people, several Senators wanted to postpone consideration of John J. Crittendon, whom President Adams had nominated as an Associate Justice of the Supreme Court. Although the Senate ultimately rejected the Crittendon nomination, the arguments made against the delay were profoundly important and ultimately carried the day throughout most of this nation's history. Senator Holmes argued, for example, that although the Senate had a right to deliberate and look into the character and qualifications of a candidate, it had "no constitutional power to resist its execution." Delays beyond what were necessary to deliberate about the nominee's qualifications were, he asserted, "an abuse of a discretion" given by the Constitution.67 Senator Johnson echoed the sentiment, stating that "The duty of the Senate is confined to an inquiry into the character and qualifications of the person, and to a decisive action upon the nomination, in a reasonable time."68 Johnson made the following dire prediction: "The moment you depart from the constitution, and begin an attack upon the other departments of the Government, you commence a conflict of authority where there is no arbiter, which will end in perpetual collision, or in the destruction of the Government."69 That, and the similar prediction by Senator Chambers "Once let discretion be adopted as the rule of conduct for those in power, and no man can prescribe limits to the mischief which must ensue"70 should give us all pause at the actions, or rather inaction, currently being undertaken in the Senate.
Another dangerous change that has occurred in the confirmation procedures involves an expansion of 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.71 Although the policy has always been constitutionally suspect72 the advice and consent power is given to the Senate as a body, not to individual Senators as historically exercised it at least had some grounding in the original purpose that underlay the advice and consent clause. Home state Senators were extended this courtesy because it was assumed that they would have first-hand knowledge of nominees from their home state that would allow them to more adequately judge their character and fitness for office just the kind of role envisioned by the framers of the clause.73 More importantly, the blue slip practice, again as historically exercised, had natural limits protecting against its abuse. 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.
Neither the original purpose nor the inherent limit is found in the current, expanded blue slip policy. Now, Senators essentially have a veto power over any nominee from the entire circuit in which their state is located, belying any claim to special knowledge of the nominee's character derived from home-state familiarity, and removing the one check on the policy's potential for abuse. 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.74 Now that the tables have turned, however, Democrats are defending their inaction not only as a political game of turnabout-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.75 Of course, the turn-about, tit-for-tat argument depends entirely on the starting point, and one need only query John Roberts and Terrence Boyle, both nominated originally in the first Bush administration, to rebut any claim that the "inaction" that has been attributed to the Republicans during the second term of the Clinton administration was the first shot in this confirmation war. In any event, one of the three main examples of Republican "inaction," Roger Gregory, was re-nominated to the Fourth Circuit by President Bush, promptly confirmed, and is now sitting on the bench. Confirmation of another, Merrick Garland, was delayed for a year by Senator Charles Grassley in response to the Democrat's stall of John Roberts,76 but he was ultimately confirmed and now sits on the D.C. Circuit Court of Appeals. The final example, Helen White of Michigan, languished for several years, but Judge White was the sister-in-law of then-Senator Carl Levin. The blue-slip opposition by Michigan's other Senator to the blatant display of nepotism was precisely the kind of check on the appointment power envisioned by the framers; that opposition hardly serves as precedent for the broad-based delay and opposition to the highly qualified nominees currently before the Senate.
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."78
Senator Schumer's questions quite obviously have nothing to do with preventing nepotism, or the appointment of incompetent political cronies, by the President. Instead, Senator Schumer's questions serve merely to test Judge Smith's commitment to the standard of "evolving constitutionalism" advocated by Schumer and some of 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 sympathizing with every part of the U. States," Senator Schumer is only required to serve his liberal constituency in New York, comprised of groups such as the National Organization for Women, which 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."79
A similar dynamic was at play in the Senate Judiciary Committee's rejection of Texas Supreme Court Justice Priscilla Owen to a seat on the U.S. Court of Appeals for the Fifth Circuit. The main source of opposition to Justice Owen was her vote to uphold a Texas statute requiring that minor girls notify their parents before obtaining an abortion. The Texas statute contained a judicial bypass mechanism, as required by existing Supreme Court precedent. In fact, there was little doubt that the statute was constitutional under prevailing precedent. The opposition to Justice Owen, then, was based on her refusal to ignore existing, binding Supreme Court precedent in favor of the expanded, unfettered right to abortion being propounded by the litigants in the case. What the opponents of Justice Owen wanted instead, apparently, was a judge who would ignore the law and existing Supreme Court precedent to advance her particular causes from the bench like the Ninth Circuit judges whose recent attempt to strike down a Montana statute that, in full accord with prevailing Supreme Court precedent, required abortions to be performed by a physician, met with a rare, summary reversal by the Supreme Court without oral argument. 80
In short, the opposition to Justice Owen, like Senator Schumer's opposition to Judge Smith, was ultimately grounded in the fear that they would honor their oaths and uphold the law rather than bend the law to their own will (or, more precisely, to the will of those who would vote to confirm them). That such is an abuse of the advice and consent process should be obvious, as should the intrusion upon both other branches of government the President's power to nominate and the very independence of the judiciary in upholding the rule of law.
Of course, Congress has some constitutional power to create schemes for the advancement of such causes or other pet projects, such as the redistribution of wealth or restriction on private liberties and property 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 radical agenda from the bench.
This is essentially the difference between raw, abusive power and constitutional norms. Having failed to accomplish their policy goals in the constitutional fashion, some members of the Senate are attempting to accomplish them by submitting judicial nominees to a vetting by radical interest groups who will decide whether the nominees can be relied upon to 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 arguably 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."81
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."82 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. or Ms. 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 or denying a vote to several nominees precisely because the current leadership knows that those nominees would honestly answer that question in the affirmative.
* Associate Professor, Chapman University School of Law, and Director, The Claremont Institute Center for Constitutional Jurisprudence. Ph.D., Claremont Graduate School, 1993; J.D., University of Chicago, 1995. Dr. Eastman formerly served as a law clerk to the Honorable Clarence Thomas, Associate Justice, Supreme Court of the United States, and to the Honorable J. Michael Luttig, United States Court of Appeals for the Fourth Circuit. This testimony is based on an article published in NeXus: A Journal of Opinion, with special acknowledgement to then-3L Chapman law student Timothy Sandefur, my co-author in that effort, and 2L Chapman law student Luma Beran-Simms, who also provided tremendous research assistance. href="#footnote*return">(Return)
2 Reaction of Sen. Patrick Leahy, D-Vt., Ranking Member, Senate Judiciary Committee, To Chief Justice Rehnquist's Year-End Report On The Federal Judiciary, Dec. 31, 1997 (visited June 2, 2002). See further 143 CONG. REC. S2518 (1997) (remarks of Mr. Leahy). href="#footnote2return">(Return)
3 Letter to Caleb Wallace, (Aug. 23, 1785) in MADISON: WRITINGS 39, 42 (J. Rakove ed. 1999). href="#footnote3return">(Return)
4 U.S. CONST. art. II § 2 cl. 2; art. III § 1. href="#footnote4return">(Return)
5 See also Weiss v. United States, 510 U.S. 163, 185 n. 1 (1994) (Souter, J., concurring) ("the President was...rightly given the sole power to nominate"). href="#footnote5return">(Return)
6 2 M. Farrand, Records of the Fedearl Convention 41 (1911). href="#footnote6return">(Return)
7 Id. href="#footnote7return">(Return)
8 Id. at 42. Mason's objections were actually more complicated. He argued that the President should not appoint judges because the judges might try impeachments of the President. This problem was later avoided by having the Senate try impeachments with the Chief Justice of the Supreme Court merely presiding. See U.S. CONST. art. I §3 cl. 6. Governeur Morris, in replying to Mason, argued that impeachments should not be "tried before the Judges." FARRAND, supra note 6 at 41-42. Mason also worried that "the Seat of Govt must be in some state," and the President would form personal attachments to people in that state, which might exclude citizens of other states from the federal bench an understandable objection from an antifederalist like Mason. This problem was at least partly obviated by placing the capital in a federal district which would not be subject to the jurisdiction of any state. See U.S. CONST. art. I § 8 cl. 17. href="#footnote8return">(Return)
9 FARRAND, supra note 6 at 42. href="#footnote9return">(Return)
10 Id. href="#footnote10return">(Return)
11 Id. at 43. href="#footnote11return">(Return)
12 Id. at 42. href="#footnote12return">(Return)
13 Id. at 43. href="#footnote13return">(Return)
14 The Convention voted by state. Georgia abstained from this vote, and Rhode Island never sent a delegate. Other states' delegates were sometimes absent for various reasons for instance, although the Convention had been under way for more than a month, New Hampshire's delegates had still not arrived. In addition, this debate came during one of the lowest points of the Convention, when the differences between the delegates was at its severest. New York delegates, Robert Yates and John Lansing, had left the Convention on July 10, opposed to all its proceedings. New York's third delegate, Alexander Hamilton, had left ten days earlier. See CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 140 (Book of the Month Club, 1986) (1966). The day Lansing and Yates left the Convention, Washington wrote to Hamilton that he "almost despaired" of the Convention's success. See Id. at 185-186. (Hamilton returned to the Convention in September and was New York's only signer). Thus the vote on July 18 was Massachusetts, Pennsylvania, Maryland and Virginia in favor of Ghorum's motion, and Connecticut, Deleware, North Carolina and South Carolina against. href="#footnote14return">(Return)
15 See THE FEDERALIST NO. 10 & 51 (C. Rossiter ed. 1961). href="#footnote15return">(Return)
16 FARRAND, supra note 6 at 81. href="#footnote16return">(Return)
17 Id. href="#footnote17return">(Return)
18 Id. at 539. href="#footnote18return">(Return)
19 Edmond v. United States, 520 U.S. 651, 659 (1997). href="#footnote19return">(Return)
20 FARRAND, supra note 6 at 81. href="#footnote20return">(Return)
21 THE FEDERALIST NO. 76 at 455 (C. Rossiter, ed. 1961). href="#footnote21return">(Return)
22 Id. at 456 (emphasis in original). href="#footnote22return">(Return)
23 Id. at 456-457. href="#footnote23return">(Return)
24 Id. at 456. href="#footnote24return">(Return)
25 Story, Commentaries on the Constitution of the United States §1525 (emphasis added) (1833). href="#footnote25return">(Return)
26 Story, supra note 25 at § 1523. href="#footnote26return">(Return)
27 James Iredell, Debate in the North Carolina Ratification Convention, July 28, 1788, reprinted in 4 THE FOUNDER'S CONSTITUTION 102 (P. Kurland & R. Lerner eds. 1987). href="#footnote27return">(Return)
28 Letter to Roger Sherman (July 20, 1789) in Id. at 106-107. John Adams was a lifelong champion of judicial independence. See John Adams, The Independence of The Judiciary: A Controversy between William Brattle And John Adams (1773) reprinted in 2 THE WORKS OF JOHN ADAMS 511 (Easton Press, 1992). He was the author of the Massachusetts state constitution, which Ghorum cited as his precedent for giving the President the power to appoint, and the Senate to advise and consent on, judicial nominees. See 1 PAGE SMITH, JOHN ADAMS 440 (1962) ("even with minor changes and deletions and one major change in the article dealing with religious freedom, the constitution [of Massachusetts] was Adams' handiwork"); DAVID MCCOLLOUGH, JOHN ADAMS 220-222 ("it was the establishment of an independent judiciary, with judges of the Supreme Court appointed, not elected...that Adams made one of his greatest contributions not only to Massachusetts, but to the country, as time would tell." Id. at 222). href="#footnote28return">(Return)
29 Id. at 107. See also James Madison, Speech in Congress on the Removal Power, June 16, 1789, reprinted in RAKOVE, supra note 3 at 453, 456 ("if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws.") href="#footnote29return">(Return)
30 James Wilson, Lectures on Law (1791), reprinted in Id. at 110. See also Americanus (John Stevens Jr.), No. VII (Jan. 21, 1788) reprinted in 2 DEBATE ON THE CONSTITUTION 58, 59 (B. Bailyn ed. 1993) ("Instead of controling the President still farther with regard to appointments, I am for leaving the appointment of all the principal officers under the Federal Government solely to the President...."). href="#footnote30return">(Return)
31 James Madison, Speech in Congress on the Removal Power, May 19, 1789, reprinted in RAKOVE, supra note 3 at 434, 436. href="#footnote31return">(Return)
32 Story, supra note 30. href="#footnote32return">(Return)
33 It might seem ironic, then, that President Washington nominated his nephew, Bushrod Washington, to the Supreme Court in 1798. But Justice Washington was easily confirmed and served a long and successful term on the Supreme Court. His most famous opinion, Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), was an important early case interpreting the Privileges and Immunities Clause in Article V. href="#footnote33return">(Return)
34 THE FEDERALIST NO. 66, at 405 (C. Rossiter ed. 1961) (emphasis in original). href="#footnote34return">(Return)
35 This is not to say that the founding generation did not use the confirmation power as a political tool. It and subsequent generations have done so very frequently. See Jeffrey K. Tulis , The Appointment Power: Constitutional Abdication: The Senate, The President, and Appointments to the Supreme Court, 47 CASE W. RES. 1331 (Summer 1997). But in these confirmation battles, the Senate more often used its power to block nominees in opposition to the President's policies, not in order to enforce a particular vision of the Constitution. In the original understanding, judicial philosophy was a matter for the President's consideration. In those unusual cases in which the Senate did attempt to enforce an orthodoxy on the Court, the Senate was subjected to severe criticism. href="#footnote35return">(Return)
36 For more on the Jay Treaty, See Thomas A. Bailey, A Diplomatic History of the American People 75-82 (7th ed. 1964); James MacGregor Burns, The Vineyard of Liberty 102-105 (Vintage Books, 1983) (1982). href="#footnote36return">(Return)
37 Washington's nomination of Rutledge was delivered to the Senate on December 10, 1795. See SENATE EXECUTIVE J. at 194 (Dec. 10, 1795). The nomination was delayed and finally rejected on December 15. See Id. at 195-196. No official record exists of floor debates on the nomination. href="#footnote37return">(Return)
38 See David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 998 (Fall, 2000) (noting that some contemporary observers claimed that "after the death of his Wife, his mind was frequently so much deranged, as to be in a great measure deprived of his senses"). As Garrow notes, "Professor Haw concludes that the nomination 'was defeated primarily for political reasons,' but even in the weeks immediately preceding the Senate's vote, Chief Justice Rutledge's mental health appears to have taken a very decided turn for the worse. In November, while riding circuit in North Carolina, Rutledge became seriously ill, and his illness exacerbated his depression to such an extent that on his way home to Charleston Rutledge apparently tried 'to drown himself at Camden' but without success" Id. at 1000. See also Letter of James Madison to Thomas Jefferson, (Feb. 7, 1796) in 2 THE REPUBLIC OF LETTERS 917, 919 (J. Smith ed. 1995) ("There is some reason to think that Jno. Rutledge is not in his mind"). But see Matthew D. Marcotte, NOTE: Advice and Consent: A Historical Argument for Substantive Senatorial Involvement in Judicial Nominations, 5 N.Y.U. J. LEGIS. & PUB. POL'Y 519, 538-539 (2001/2002) (arguing that allegations of Rutledge's insanity were a tool in the partisan campaign against Rutledge). href="#footnote38return">(Return)
39 Letter to William Branch Giles (Dec. 31, 1795) in 9 WRITINGS OF THOMAS JEFFERSON 318 (A. Bergh ed. 1907). href="#footnote39return">(Return)
40 David Mayer argues that Jefferson "gave only lukewarm support" to the attempt to impeach Chase. DAVID MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 273 (1994). Dumas Malone shares this view. DUMAS MALONE, JEFFERSON THE PRESIDENT: FIRST TERM 1801-1805 at 468-469 (1970). For an interesting evaluation of the impeachment power as a mechanism for redressing the problem of faction, see Jonathan Turley, Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, 49 DUKE L.J. 1 (Oct. 1999). href="#footnote40return">(Return)
41 President Jefferson referred the question of Judge Pickering's impeachment to the Congress on February 4, 1803. See 13 ANNALS OF CONG. 460 (1803). The House reported articles of impeachment to the Senate on March 2. Id. at 642. The Senate took up the impeachment proceedings on October 26. 13 ANNALS OF CONG. 315. The actual trial began January 4, 1804. Id. at 317. href="#footnote41return">(Return)
42 Act of July 14, 1798, 1 Stat. 596 (1798). href="#footnote42return">(Return)
43 Randolph was a cousin of Jefferson's, but while he started out as a leading member of Jefferson's party, he ended up being Jefferson's chief antagonist in the House. See ALF MAPP, THOMAS JEFFERSON: PASSIONATE PILGRIM 41-42 (1991). href="#footnote43return">(Return)
44 13 ANNALS OF CONGRESS 807 (1804) (statement of Mr. Elliott). href="#footnote44return">(Return)
45 MALONE, supra note 40 at 469 (quoting New York Evening Post, Jan. 20, 1804). href="#footnote45return">(Return)
46 13 ANNALS OF CONGRESS 808-809 (1804). href="#footnote46return">(Return)
47 MAYER, supra note 40 at 268-276, discusses Jefferson's view of the proper role of ideology in the judiciary a view too complex to address fully here. In brief, "Jefferson's constitutional theory...relied upon the independence of the judiciary as a guardian of individual rights against executive and legislative tyranny; [so] his quarrel with the judiciary was that under the control of the Federalists, it failed to fulfill this vital function and had become the destroyer rather than the protector of the Constitution and citizens' liberties." Id. at 268. As I argue infra, section II, today's attempt by Senate liberals to delve into the ideology of judicial nominees gets this Constitutional theory backwards: their quarrel with the judiciary is precisely that it threatens to place roadblocks in the way of the left's attempt to increase government control over citizens' lives. Where Jefferson believed the judiciary should not be independent "of the will of the people," modern liberals want the judiciary dependent on the will of political interest groups. Witness the liberal reaction to the recall of California Chief Justice Rose Bird an expression of "the will of the people" which the left denounced as a corruption of the rule of law by thoughtless mob rule. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985 (Sept. 1988). Witness also the notion of a "living Constitution," by which unelected judges exercise the power to nullify duly enacted laws based on their own unaccountable consciences. href="#footnote47return">(Return)
48 THE DIARY OF JOHN QUINCY ADAMS 1794-1845 at 35 (Allan Nevis ed., 1928). Adams, of course, would become much more familiar with such "party prosecutions" late in his career, when the House of Representatives attempted to expel him for his outspoken opposition to slavery. See WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY (1996). href="#footnote48return">(Return)
49 MAPP, supra note 43 at 89. href="#footnote49return">(Return)
50 See generally Bob Woodward & Scott Armstrong, The Brethren 75-79 (1979). href="#footnote50return">(Return)
51 See CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 324 (1935) ("The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities"). href="#footnote51return">(Return)
52 Quoted in Roger Pilon, The Purpose And Limits of Government 31(Cato Institute 1999). href="#footnote52return">(Return)
53 See generally Thomas Fleming, The New Dealer's War: FDR And The War within World War II 59-62 (2001); Hadley Arkes, The Return of George Sutherland (1994); Timothy Sandefur, The Common Law Right to Earn A Living, 75 Independent Review 51 (Summer 2001); Bernard Seigan, Economic Liberties And The Constitution (1980). See further United States v. Carolene Products, 304 U.S. 144, 152 (1936); West Coast Hotel v. Parrish, 300 U.S. 379, 398 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30-31 (1937). href="#footnote53return">(Return)
55 John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, LOS ANGELES TIMES, May 3, 1992 at B5. href="#footnote55return">(Return)
56 In 1992, Judge Pregerson ordered a stay to the execution of the serial killer Robert Alton Harris, the fourth such stay that was issued on the night of Harris' scheduled execution. The result was an unprecedented decision from the Supreme Court of the United States, ordering that "no further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this Court." Vasquez v. Harris, 503 U.S. 1000 (1992). See further Charles Fried, Impudence, 1992 SUP. CT. REV. 155, 188-92. href="#footnote56return">(Return)
57 Antonin Scalia, God's Justice And Ours, FIRST THINGS, May 1, 2002 at 17. href="#footnote57return">(Return)
58 The oath of office is prescribed in U.S. CONST. art. VI § 3. href="#footnote58return">(Return)
59 Letter to Thomas Jefferson (June 27, 1798), in RAKOVE, supra note 3 at 801 (emphasis added). href="#footnote59return">(Return)
60 THE FEDERALIST NO. 78 at 466 (C. Rossiter ed. 1961). href="#footnote60return">(Return)
61 Id. href="#footnote61return">(Return)
62 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in RAKOVE, supra note 3 at 418, 421. href="#footnote62return">(Return)
63 SENATE EXECUTIVE J. at 19 (Aug. 21, 1789) cited in Lee Renzin, NOTE: Advice, Consent, and Senate Inaction: Is Judicial Resolution Possible? 73 N.Y.U. L. REV. 1739, 1755 (Nov. 1999). href="#footnote63return">(Return)
64 The arrogation of the nomination power to individual Senators is also evident in new structures that have been devised for the selection of district court judges. Patterned after the commissions established by Gerald Parsky in California with the enthusiastic support of Senators Feinstein and Boxer, these "vetting" commissions essentially have veto power over candidates submitted for the President's consideration. Because the committees are structured so that block voting by the Feinstein and Boxer appointees can prevent any candidate's name from being forwarded to the White House, the commissions amount to much more than "advice" to the President. They represent a transfer of the nomination power itself to individual Senators, Senators who are not even members of the President's own political party. Reportedly, the appointees of Senators Feinstein and Boxer have used this new-found power to question candidates about their religious views, in violation of the Constitution's ban on religious tests, see U.S. Const. Art. VI, cl. 3, and about their positions on cases likely to come before the candidate as judge, in violation of the Canons of Judicial Ethics. See generally, John Fund, "Boxer Rebellion," Wall Street Journal, June 5, 2002. href="#footnote64return">(Return)
66 Judge Parker was nominated on May 9, 2001 and confirmed on October 11, 2001. See further David G. Savage, Bush's Judicial Nominees Go 28 for 80 in The Senate, LOS ANGELES TIMES, Dec. 31, 2001 at A12. Judge Gregory was nominated on May 9, 2001 and confirmed on July 20, 2001. See further Jonathan Ringel, Senate Confirms Three Bush Judicial Nominees, THE LEGAL INTELLIGENCER, July 24, 2001 at 4. href="#footnote66return">(Return)
67 5 Cong. Deb. 86, 88 (Feb. 2, 1829). href="#footnote67return">(Return)
68 Id. at 92. href="#footnote68return">(Return)
69 Id. href="#footnote69return">(Return)
70 Id. at 86. href="#footnote70return">(Return)
71 Brannon P. Denning, The "Blue Slip": Enforcing The Norms of the Judicial Confirmation Process, 10 WM. & MARY BILL OF RTS. J. 75 (Dec. 2001). href="#footnote71return">(Return)
72 According to its defenders, the blue slip procedure enforces the Constitutional scheme of advice and consent by serving as a "formal sanction for violation of the Senate norm of the courtesy from presidents, who are expected to Seek advice from Senators prior to making judicial appointments." Id. at 97. But the President is not expected to seek advice from individual Senators, or at least not from the two Senators from a nominee's home state, whose views will be based primarily on the nominee's party loyalty and the Senator's political ambitions. The Constitution expects the President to seek advice from the Senate. In fact, as the history of the Advice and Consent Clause shows, the founders would have preferred a system which required the President to seek the advice from Senators of states other than the nominee's home state, because they would be less likely to be influenced by that nominee's home-grown political connections. In any case, the Constitution does not confer the confirmation power on the home-state Senators; it vests it in the Senate, and only to prevent unqualified or politically driven nominations. href="#footnote72return">(Return)
73 See note 31, supra. href="#footnote73return">(Return)
74 See, e.g., Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 233 (Jan. 1997) (proposing a lawsuit to force the Senate to hold hearings on nominees); Renzin, supra note 63 (arguing that blue slip procedure and Senatorial inaction are unconstitutional). Of course, in reality, the Congress did not refuse to confirm President Clinton's judicial nominees it confirmed 377, almost as many as were confirmed during the Reagan Administration (382), despite the fact that for six of his eight years in office, President Clinton was faced with a Senate majority of the opposite political party, while President Reagan had a Senate majority of his own party for six of his eight years in office. href="#footnote74return">(Return)
75 See Thomas G. West, The Constitutionalism of the Founders Versus Modern Liberalism, 6 NEXUS J. OP. 75 (2001). href="#footnote75return">(Return)
76 See Michael J. Gerhardt, "Toward a Comprehensive Understanding of the Federal Appointments Process," 21 Harv. J. L. & Pub. Pol'y 467, 516 (Spring 1998) (citing, e.g., Editorial, Judicial Gridlock, Wash. Post, July 10, 1996, at A16). href="#footnote76return">(Return)
77 Griswold v. Connecticut, 381 U.S. 479 (1965). href="#footnote77return">(Return)
78 Quoted in Byron York, Schumer's Attack, NATIONAL REVIEW ONLINE, May 14, 2002 (visited May 23, 2002) 79 NOW Activists Protest Nomination of D. Brooks Smith Outside Federal Court Building, May 20, 2002, (visited May 23, 2002) 80 See Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) ("The Court of Appeals' decision is also contradicted by our repeated statements in past cases none of which was so much as cited by the Court of Appeals, despite the District Court's discussion of two of them that the performance of abortions may be restricted to physicians"). href="#footnote80return">(Return) 81 Statement to Administrative Oversight And The Courts Subcommittee (June 26, 2001) 2001 WL 21756493. href="#footnote81return">(Return) 82 Samuel Spencer, Speech at the North Carolina Ratification Convention, July 28, 1788, reprinted in 2 BAILYN, supra note 30 at 879. href="#footnote82return">(Return)
79 NOW Activists Protest Nomination of D. Brooks Smith Outside Federal Court Building, May 20, 2002, (visited May 23, 2002) 80 See Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) ("The Court of Appeals' decision is also contradicted by our repeated statements in past cases none of which was so much as cited by the Court of Appeals, despite the District Court's discussion of two of them that the performance of abortions may be restricted to physicians"). href="#footnote80return">(Return) 81 Statement to Administrative Oversight And The Courts Subcommittee (June 26, 2001) 2001 WL 21756493. href="#footnote81return">(Return) 82 Samuel Spencer, Speech at the North Carolina Ratification Convention, July 28, 1788, reprinted in 2 BAILYN, supra note 30 at 879. href="#footnote82return">(Return)
80 See Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) ("The Court of Appeals' decision is also contradicted by our repeated statements in past cases none of which was so much as cited by the Court of Appeals, despite the District Court's discussion of two of them that the performance of abortions may be restricted to physicians"). href="#footnote80return">(Return)
81 Statement to Administrative Oversight And The Courts Subcommittee (June 26, 2001) 2001 WL 21756493. href="#footnote81return">(Return)
82 Samuel Spencer, Speech at the North Carolina Ratification Convention, July 28, 1788, reprinted in 2 BAILYN, supra note 30 at 879. href="#footnote82return">(Return)