The Path to and From the Supreme Court

The Supreme Court in American Society

Kermit L. Hall

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781135691257
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Available as a single volume or part of the 10 volume set Supreme Court in American Society

THE SUPREME COURT APPOINTMENT PROCESS: A SEARCH FOR A SYNTHESIS

William G. Ross*

I. INTRODUCTION

II. SUBJECTS OF POTENTIAL REFORM

A. The Senate’s Role in the Nomination Process

B. The Questioning of Nominees at Confirmation Hearings

C. Closed Judiciary Committee Sessions

D. Adoption of More Specific Criteria for Confirmation

E. The Role of Special Interest Groups

F. Private Meetings Between Senators and Nominees

G. Background Investigations

H. Political Balance on the Judiciary Committee

I. Philosophical “Balance” on the Court

J. Leaks of Senate Information

K. A Two-Thirds Rule for Senate Confirmation

III. CONCLUSION

I. INTRODUCTION

The perennial controversy over the Supreme Court appointment process reached a new pitch of intensity during the Reagan-Bush era. This so-called confirmation mess,¹ which generated widespread proposals for procedural reforms, was the inevitable result of the Democratic Senate’s dismay over attempts by Republican Presidents to appoint jurists who would tilt the Court in a more “conservative” direction.² The frustration of Democratic senators was particularly acute since two decades had elapsed since a Democratic President had been able to make a single nomination to the Court. The ease with which Ruth Bader Ginsburg won Senate confirmation³ vindicated widespread predictions that the turbulence of the process would subside once a Democratic President sent a nomination to a Democratic Senate.⁴

The tranquility of the Ginsburg nomination process was not inevitable, however. The recent controversies over President Clinton’s nominations of Zöe Baird to be attorney general and Lani Guinier to head the Civil Rights Division of the Justice Department demonstrate that a Democratic Senate will not spare a Democratic President’s nominees from close scrutiny, and that Republican senators and assorted public interest groups remain potent forces. Indeed, it is probable that recent confirmation struggles have forever transformed the judicial selection process. Having exercised a broad role, neither senators nor public interest groups are likely to revert to the passivity that all too often limited their participation before the Reagan-Bush era.⁵

One would hope that we never return to the “good old days,” when confirmation hearings too often consisted of hosannas to the nominee from the American Bar Association and other pillars of the old boy network, together with a few deferential questions from senators.⁶ Instead, we should strive to achieve a synthesis that will preserve the robust qualities of recent confirmation processes, while avoiding the rancor that blighted the deliberations on both Bork and Thomas. In many ways, the Ginsburg confirmation process achieved such a synthesis insofar as Ginsburg’s nomination received careful scrutiny from senators and the public but avoided any donnybrook.

Since the Supreme Court exercises a pervasive and growing influence on the lives of every American, the trend toward more careful scrutiny of nominees by both the Senate and the general public is consistent with a vital democracy.⁷ Although some aspects of the confirmation process may be a mess, democracy itself is messy. I applaud the liberals who tormented the Reagan and Bush nominees—although I deplore some of their tactics—and I would urge conservatives to subject Clinton’s nominees to similarly intense scrutiny. We do not elect Presidents or members of Congress without placing their records and personalities under protracted public scrutiny. Likewise, we should not allow a Supreme Court nominee to escape close examination, particularly since she is likely to serve for at least twenty years if confirmed and because life tenure will effectively immunize a nominee from the effects of any further criticism.⁸ Judicial selection is simply too important to be left almost solely to the discretion of the President.

Since judicial decisions have profound political implications, the selection of judges should be subject to a far-ranging political process that involves the active participation of the Senate and individual citizens, acting alone or through organized groups. The current trend toward such participation offers the only democratically appropriate alternative to the election of federal judges, which would unduly politicize the judiciary and interfere with its counter-majoritarian role.⁹ The expansion of public participation in the federal judicial appointment process is consistent with the gradual but inexorable growth of popular participation in the political process during the past two centuries, which has resulted in the abolition of suffrage restrictions based upon race, gender, property and literacy, and has led to the direct election of senators and court-ordered reapportionment of voting districts.

Scholars and commentators generally agree that the Senate should exercise a broad role in the judicial confirmation process.¹⁰ And it is almost a truism that judicial selection is a political process in which both the President and senators strive to mold a judiciary that is at least broadly sensitive to their political ideals.¹¹ Moreover, many commentators believe that the Senate should not accord any specific presumption in favor of the President’s nominee.¹² Although past experience suggests that intensive scrutiny by the Senate “is likely to be episodic,”¹³ the Senate should subject every nomination to careful scrutiny.¹⁴ There is no reason to fear that intense scrutiny will generate frequent rejections of nominees that would unduly protract the appointment process or interfere with the Court’s work. The institutional imperatives of the process naturally give the President’s choice a powerful advantage.¹⁵ As Alexander Hamilton pointed out, the Senate “may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice” of the President.¹⁶ Senators who dislike a nominee recognize that a President in most instances is not likely to nominate someone that they would find more satisfactory.¹⁷ This fact alone will serve as an ample restraint against excessive senatorial zeal in opposing nominations.¹⁸

Existing confirmation procedures are generally well designed to accommodate vigorous roles for the Senate and the general public. The more unsavory aspects of recent confirmation struggles, particularly the distortions of Robert Bork’s record, were the fault of individuals and organizations rather than the confirmation process itself.¹⁹ What is needed is self restraint rather than a more closed process,²⁰ and, perhaps, a re-examination of the proper role of a Supreme Court that is so powerful that appointments to it inspire such widespread concern.²¹ Nevertheless, a few reforms would further improve the Supreme Court appointment process. This Article will analyze the merits of various recent proposals for reform of that process.

II. SUBJECTS OF POTENTIAL REFORM

A. The Senate’s Role in the Nomination Process

Some critics of the nomination process have proposed that the President and Senate avert conflict by involving the Senate more actively in the nomination process.²² Commentators have suggested that the Senate submit a list of recommended nominees to the President,²³ or that the President provide the Senate with a list of potential nominees.²⁴ The Senate Democratic Task Force on the Confirmation Process likewise suggested in its December 1991 report that the Senate has a constitutional right or duty to become involved in the nomination process.²⁵ Although proposals for senatorial participation in the selection process may wane somewhat now that the President’s party controls the Senate, the increasing assertiveness of the Senate in the judicial selection process during recent years and its lack of deference to the Clinton Administration suggests that senators and commentators of varying political tendencies will continue to advocate a broader role for the Senate in the selection process.

It is desirable for senators to recommend nominees, since this might make the President more aware of a worthy candidate whom he otherwise might have overlooked.²⁶ To the extent that the Senate as a whole more accurately reflects the nation’s diversity than does any one President, senators may be aware of well qualified candidates that the President would have overlooked, and may make the President more sensitive to ethnic, racial, geographical, or other demogr...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Series Introduction
• Volume Introduction
• “A Bench Happily Filled:”Some Historical Reflections on the Supreme Court Appointment Process
• Women as Supreme Court Candidates: From Florence Allen to Sandra O’Connor
• The Senate and Supreme Court Nominations: Some Reflections
• Personal Change and Policy Change on the U.S. Supreme Court
• The Supreme Court in Periods of Critical Realignment
• Andrew Jackson and the Judiciary
• A Klansman Joins the Court: The Appointment of Hugo L. Black
• LBJ and the Fortas Nomination for Chief Justice
• Bork and Beethoven
• Presidential Appointments to the Supreme Court
• Sexual Harassment
• The Supreme Court Appointment Process: A Search for a Synthesis
• The Justices of the Supreme Court: A Collective Portrait
• The Appointment of Chief Justice Marshall
• The Defeat of Judge Parker: A Study in Pressure Groups and Politics
• The Birth Order Oddity in Supreme Court Appointments
• Acknowledgments