Advise & Consent

by Terri Peretti

I. The History of Advise & Consent
The ever imperial Richard Nixon once said: "The Constitution entrusts one person with the power of appointment." What Nixon conveniently forgot was that 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."

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

• The process has always been contentious.
• It's always been driven by partisanship and ideology, with presidents & senators competing to shape the bench.
• But certainly there have been changes. For example, there's much more IG and media participation and thus more public attention focused on the process today. And some new tools being used, like the filibuster where senators indefinitely extend debate to prevent a vote on the nominee.
• But we need to remember one important fact: over 80% of judicial nominees are confirmed by the Senate. So, the process is highly contentious, but only a minority of the time.

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?"
Why do some nominees get "borked" and others don't? The answer, most often, is politics. Slugfests and rejections are more likely:

• The greater the ideological distance between the nominee and senators.
• The weaker the qualifications of the nominee (a non political factor).
• During times of divided government, when the presidency & Senate are controlled by different parties.
• In the president's 4th year in office.
• When the president is politically unpopular.
• And for "critical nominations" where an appointee is likely to tip the ideological balance on the Court.

II. Confirmation Ethics
Let's now shift gears and move on to the ethics of confirmation. I wanted to provide you with some examples of questionable behavior and came up with far too many for my limited time today, which is itself a bad sign. I ended up cutting mostly examples by Democrats, but this shouldn't be read as an indication that I think either party has a monopoly on the high or the low road in this process. Neither does.

• Judiciary Committee Chair Orrin Hatch allowed Republican home-state senators to challenge Clinton's judicial nominees, a right he denied to Democratic senators when Bush won the White House in 2000.
• Hatch placed a hold on all of Clinton's judicial nominees during the impeachment proceedings. The logjam was broken when Clinton agreed to nominate Hatch's friend Ted Stewart to the federal bench in Utah.
• A Democratic staffer leaked to the press that Anita Hill had made sexual harassment allegations against Clarence Thomas after she was promised confidentiality.
• In 2002, Senator John McCain held up judicial candidates in order to convince George Bush to nominate a candidate McCain favored to the Federal Election Commission.
• Bill Clinton nominated the liberal William Fletcher to the 9th Circuit, but Senate Republications wouldn't schedule hearings unless the nominee's mother, the equally-liberal Betty Fletcher, resigned from the 9th Circuit. This so-called "throw momma from the bench" strategy worked. Betty Fletcher resigned, William Fletcher was confirmed, and Clinton was forced to fill the extra vacancy with a Republican.
• During George W. Bush's first term, Democrats---the minority party in the Senate---blocked 10 lower court nominations using the filibuster. Senate Republicans criticized this as "unprecedented" even though Republicans were the first to make use of the judicial filibuster, in 1968, when they used it to defeat Lyndon Johnson's nomination of Abe Fortas to the Chief Justice seat.
• In a private but not public memo, the Nixon White House defined a strict constructionist as "a judge who will not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."
• The first President Bush withheld FBI reports from the Senate Judiciary Committee as punishment for its treatment of Clarence Thomas.
• Presidents Truman and Kennedy nominated racists to the federal bench to satisfy Southern Democrats in the Senate.
• FDR chose one nominee to get support for his war policies from the Senate Foreign Relations Committee chair.
• Reagan twice refused to nominate Anthony Kennedy because of his "distressing" acceptance of privacy rights.
• During her Senate confirmation hearings, Ruth Bader Ginsburg refused to state her views on abortion, even though she had already written articles on the subject. Clarence Thomas not only refused to state where he stood on abortion but claimed that he had never thought about the issue. Scalia refused to express his opinion on Marbury v. Madison.
• Planned Parenthood ran an ad against Supreme Court nominee Robert Bork that said: with Robert Bork on the Court, "states could ban or require any method of birth control, impose family quotas for population purposes, make abortion a crime, or sterilize anyone they choose."

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
Principle #1: Judicial nominees deserve close, careful scrutiny.

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.
Principle #2: Senators should ascertain the ideological views of the nominee and vote accordingly, in line with the views of their constituents.

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 and non-answers.
Principle #3: All participants should be honest about their aims, which are debated in an open and transparent manner.

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).