Markkula Center of Applied Ethics

Advise and Consent: What Are the Ethics of Confirmation?


The Challenge

Confirmation battles over President Bush's nominees have seemed to drag through the Senate, especially battles over judicial appointments. The president's and the Senate's role in appointments, which are constitutional and political issues, also raise questions about the ethics of the process.

What's at Stake

Twenty years ago, the average circuit court confirmation took 53 days. Now it takes about 156 days. And President Bush is not the first to see his nominations stymied. Almost 60 of President Clinton's judicial nominees were defeated through Republican blocking of hearings and votes. Some scholars set the beginning of the conflict
escalation with President Jimmy Carter and the changes he adopted in the judicial selection process. In any case, the confirmation process has always been political though we are definitely at a nadir of partisan acrimony. Both parties are questioning the fairness of the nomination and confirmation process.

Critical Questions

  • Does the president have an obligation to appoint moderates to judgeships, or should he seize his opportunity to implant his constitutional vision on the court through his appointments? Does the president's obligation in this area vary depending on the strength of his mandate in the election?
  • What is the proper role of the Senate in vetting
    the president's picks? Upon what kinds of issues-professional, legal, political, ideological, moral, religious, etc.-should they focus? Should they vote to confirm even those jurists with whom they have strong ideological or constitutional-doctrinal differences?
  • How does the lifetime nature of Supreme Court appointments affect the obligations of both the president and the Senate?
  • Does the current highly partisan environment make a fair and orderly confirmation process impossible? What can be done about this?

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