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Advise & Consent
by Terri Peretti
I. The History of Advise & Consent
It took several months and lots of wrangling to come up with that particular provision, and there's lots of debate over what exactly was intended. But what we know is that the Framers were pretty smart, they were practical politicians, and they knew that Senate confirmation would inevitably invite politics into the process. And they were right.
In 1795, the Senate rejected George Washington's nomination of John Rutledge to be C.J. because of the nominee's opposition to the Jay Treaty. In 1828, the Senate delayed John Quincy Adam's nomination of John Crittenden on a strictly partisan vote to save the vacancy for an incoming president---Andrew Jackson---who they liked better.
So the Senate has never been just a rubber stamp. It has taken its role quite seriously, refusing to confirm historically nearly 20% of the president's nominees to the Supreme Court (with a similar percentage for recent lower court nominees).
Plus we have to remember that this is "the tip of the iceberg" and doesn't include when presidents anticipate Senate preferences and choose nominees in order to avoid defeat, as when President Ford nominated the moderate John Paul Stevens instead of the conservative Robert Bork whom the Democratic Senate would never have confirmed.
And finally there's senatorial courtesy, where senators will refuse to confirm a nominee if opposed by home-state senators of the president's party. Senatorial courtesy is a powerful constraint on the president's freedom to appoint judges to the lower federal bench.
Looking back at over two centuries of advice and consent, we
can see that
What though explains why it's sometimes contentious? Or in
the words of Professors Lee Epstein and Jeff Segal, why are
some hearings "lovefests" and others "slugfests?"
All of these examples raise important issues---about the legitimacy of ideological review, the filibuster, the role of interest groups and ad campaigns, political bargaining over nominees, and nominees' refusal to answer. What I'd like to offer are some guiding principles that might help us in thinking about judicial selection ethics.
Senate confirmation is the only formal process available to
examine these individuals who are deciding important issues
and who have life-time appointments, leading to
Social science evidence proves that a judge's ideology influences
her decisions and that judges' voting behavior correlates at
a high level with the appointing president's ideology, especially
at higher levels of judiciary.
Finally, the Senate confirmation process has the potential
to be highly educational---helping the nation discuss and decide
our constitutional values. And this is where I'm most disappointed
with the process. There is far too much deceit on the part of
presidents, senators, and nominees. No one is honest about how
they want to change the bench and change legal policy. Instead,
there's a lot of phony talk about strict constructionism and
judicial restraint and, in the hearings, too many non-questions
I agree that the process is often messy and chaotic and infected with politics, and I rather like it that way---as long as we get an effective dialogue about our constitutional values. That's what I'm after. If a filibuster facilitates that process, that's fine. If a filibuster enables a group of senators to say "my constituents have serious objections to this nominee's views," that's legitimate.
Again, our goals should be (1) careful scrutiny, (2) ideological review, and (3) honesty & transparency.
Terri Peretti, chair of the Department of Political Science
at Santa Clara University, gave this talk at the Ethics
Outlook, Nov. 10, 2005. She is the author of In Defense
of a Political Court (Princeton University Press).
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