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
- The weaker the qualifications of the nominee (a non political
- 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
- 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
- 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
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,"
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).