In contrast to Senator Kennedy's op-ed (which I discuss here), Benjamin Wittes offers a thoughtful essay in today's Washington Post on the judicial confirmation process, based in part on his interview of Chief Justice Roberts. (Interestingly, Senator Kennedy's essay is on the front page of the Post's Outlook section this morning, while Wittes' piece is buried on page 4.) Among other things, Wittes adds some useful historical perspective to the debate over judicial nominations.
As Wittes notes, judicial confirmation hearings have never been about the substance of a nominees views.
If the history of judicial confirmations proves anything, it is that the hearings were never meant to be a thoughtful inquiry into a nominee's judicial philosophy. Rather, their point has always been to wring concessions from would-be jurists or to tar them as unworthy. Since live testimony by nominees became standard after the Supreme Court's 1954 decision striking down segregated public schools, senators have sought to pressure nominees into swearing allegiance to contested ideas, or to make statements that provide ground for opposition.Indeed, the nature of the political process is such that even if a serious probing of a nominee's substantive views were desirable (and I do not believe it is), such a dialogue would not occur in the Senate.That is what the hearings still achieve today. They function coercively not because they are failing their intended purpose. Coercion is their intended purpose.
How should the hearings be conducted? Chief Justice Roberts' prescription does not sound so bad.
If there are serious questions about qualifications, senators should explore those. If there are serious questions about ethics, senators should explore those. If there are disputes about appropriate judicial philosophy and approach, talk about those. But barring that . . . everybody doesn't have to think that this is an opportunity for them to be the reincarnation of Clarence Darrow.Wittes offers an alternative prescription: End nominee testimony.
The democratic moment is not the interrogation of the nominee. It is the point at which the people's representatives debate the nominee's record and cast their votes. Ironically, the hearings only obscure that moment. Many viewers probably remember Alito and Roberts demurring on how they would vote on abortion. But how many remember what a single senator said during the floor debate over either of them?This is a good idea too, but I would not hold my breath waiting for it to happen.
I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote, largely based upon the nominee's record, qualifications, and character. In my view, the relevant "democratic moment" occurs during the Presidential election, but I realize this is anything but a consensus view. I also believe that past Democratic mistreatment or Republican nominees did not justify Republican payback during the Clinton presidency, and Republican malfeasance does not justify Democratic payback since.
However one believes the process should be reformed, there is a window for meaningful reform of the confirmation process. At present, neither party is particularly interested in endorsing "neutral" rules for the process. Senator Leahy, for example, proposed rles for ensuring quick consideration of judicial nominees during the Clinton Administration, but he would not support (let alone sponsor) that legislation today. The only real hope is for a majority of Senators to endorse a set of neutral procedures that will take effect after an intervening election -- preferably one far enough in the future that the outcome is indeterminate (e.g. an agreement in early 2007 to take effect in January 2009). In this way, both parties could endorse the reforms on their merits, rather than on their likely effect on either party's nominees. Similar ideas have been floated in the past, but there have not been many takers in the Senate.
Related Posts (on one page):
- Kennedy Correction:
- Wittes on Reforming the Confirmation Process:
- Senator Kennedy Assails Alito and Roberts:
Why?
Why is the election of a President a more important (or relevant) democratic moment than the election of the Senate (in our post-17th Amendment world)?
It seems to me that both the President and the Senate should strive to nominate well-qualified non-idealogues. But I don't see why the Senate should be deferential, any more than the President is deferential when determining whether to sign a bill, or the Senate is deferential in determining whether to sign a revenue bill that the House has (as is its constitutional right) originated and passed.
Of course, that doesn't mean that a governmental actor should always "accept" the views of another actor who is entrusted with originating a proposal. But it's pretty clear that "respect" is built into the structure of the Constitution, IMHO.
I believe this was an oversight by the Founders, that they failed to envision a protracted confirmation or even one that ends without a vote.
They set a time limit for the President to approve or reject a bill or it becomes law by default (if Congress is still in session.) Had they done the same for presidential nominations and required Congress to act by a certain time in order to reject them, it would be working pretty much as you (and I) think it should.
Can you point to the precise part of the Constitution that says that? I see the words "advice" and "consent"; I don't see the words "no obvious malefactors" or "only" or "prerogative".
The Senate was designed by the Founders to pester the President, to hound him, to harass and annoy him at all turns. The suggestion that the Senate should be the President's lapdog is profoundly inimical to the ideas that infuse our Constitution.
To what does the word "record" refer? To past decisions? If not that, then what? And if it is legitimate to vote based on a nominee's past decisions, why is it not legitimate to vote based on the nominee's views of past cases on which he did not rule, when the substance of the case is well-known?
I believe that Presidents should have the power to use the veto as a policy-shaping instrument. Despite my concerns about excessive Presidential power, I think this a necessary component of those powers.
All in all, I reject the notion of deference from one branch to another. Each branch should execute its responsibilities with energy. What's the point of "checks and balances" if nobody is willing to check anybody else? What is the meaning of separation of powers when one branch scruples to enforce its separate powers?
If we want to get normative about all this, I would suggest that greater normative onus falls on Congress to start passing some Constitutional amendments to resolve some of the divisive issues of the day. For example, I'd much prefer to see a Constitutional Amendment defining the moment at which a fetus becomes a person. Let them all sit down and thrash out a compromise that nobody likes and everybody can live with. Draw a line. 3 months? 6 months? Pick a date and be done with it.
Yes, I know that this will never happen. But, like Professor Broughton, I'm being normative.
If the President is trying to leverage changes in a new law because of the President's policy preferences, then I think that the first sentence of the Constitution may come into play. Obviously, it's a political question that shouldn't be decided by the courts, but it's also obvious that abuse of the veto power can come into conflict with the first sentence of the Constitution.
Likewise, if the Senate extorts instead of advises the President as to appointments, then that impinges upon the President's exclusive power to nominate.
Your second paragraph is even more troubling. How can the Senate 'extort' the President? The President has the exclusive power to nominate and the Senate has the exclusive power to confirm. The exercise of those powers cannot constitute extortion by any reasonable interpretation of the term.
You say that each branch should execute its responsibilities with energy. Absolutely. All I'm saying with regard to the veto is that the President does NOT have a "responsibility" to veto every bill with which he disagrees. I don't think any President has ever advanced such a notion. Instead, every President that I know of has always shown at least SOME deference to the legislative branch, which after all has exclusive responsibility for "legislating."
Moreover, if a President says "I will veto every bill you send me until I get a bill that says precisely thus-and-such" then that would be extortion. The President would be usurping legislative power.
Likewise for nominations, it would be extortion for the Senate to give the President the name of someone who must be nominated, and then simply refuse to consider anyone else.
In my view, this kind of extortion would be not just unwise but also unconstitutional, albeit probably not justiciable.
As far as Broughton's article is concerned, you're right that he merely asked how the veto should be exercised "as a matter of wise and sagacious presidential and constitutional practice." Basically, that's what I was referring to in my first comment in this thread, and surely the answer to that question can be influenced by the constitutional text, the intent of the framers, et cetera. And as with most legal matters, there is a point at which "should" becomes "must."
I am not categorically arguing that the Constitution itself forbids the President to make policy vetoes. But I do believe that mere disagreement with a statute is not enough of a reason to veto it.
Anyway, thanks for the conversation.
This was the exact topic of my first comment submission to the VC. Eugene asked readers (there were many fewer back then, I think) to submit their ideas for constitutional amendments. My amendment would have said, basically, that by refusing to give a given nominee a vote, the Senate was basically abdicating its responsibility to do so, and said nominee would be considered confirmed after the passage of a reasonable amount of time.
Naturally, this would apply equally to nominees of all parties.
- AJ
2. The view that the President should veto only measures that in his opion are unconstitutional is part of the weak Presidency view that went out with the Civil War. If the Founders meant to fetter the President's discretion in this way, you would think they would have said something about it in the Constitution.