The Volokh Conspiracy - Will Conservatives Try to Block a President Obama's Judicial Nominees?

MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it.

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.

	[Jonathan Adler, September 13, 2008 at 6:02pm] Trackbacks Will Conservatives Try to Block a President Obama's Judicial Nominees? MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge). As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it. So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse. UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.