Balkinization: What the Senate Should Do

What the Senate Should Do

Chris Eisgruber

This post is the last of three marking the 20th anniversary of the Senate vote rejecting Robert Bork’s nomination to the Supreme Court (the vote was twenty years ago today: October 23, 1987). In the first two entries, I described how the Bork hearings produced a surprising legacy: an aggressively ideologically nomination process coupled to a highly stylized confirmation process.

Senator Arlen Specter has described the post-Bork confirmation process as a “subtle minuet,” in which the nominee answers only “as many questions as he thinks necessary to be confirmed.” As part of this minuet, nominees must declare themselves to be disciples of judicial restraint, who will humbly defer to elected officials. And declare they do.

Once they reach the Court, though, matters are different. On some issues, justices do restrain themselves. For example, Stephen Breyer defers to Congress on federalism issues, and Antonin Scalia defers to Congress and the states about issues of personal morality. But every justice allows his or her own controversial judgments about constitutional meaning to trump legislative judgments on some issues.

I’m not saying that the justices simply vote their ideological values, or that they behave exactly like legislators. They don’t. Every justice also has a mix of procedural and institutional values—what some people might call ‘rule of law’ values—that will lead him or her to defer to other decision-makers (including past courts) on some issues but not others.

What the Senate needs to know from nominees to the Supreme Court is not whether they believe in judicial restraint (who doesn’t!) or whether they will defer to elected officials (of course they will—sometimes!) but when they will defer. Put differently, the Senate needs to know what the nominee thinks that judicial review is good for—why and when it makes sense for unelected judges to impose their own controversial judgments (about constitutional meaning) on legislators and other political actors.

Of course, if Senators ask nominees for this sort of information, the replies will likely consist of carefully crafted pabulum. “I would intervene only when careful examination of the founders’ design, the history of this nation and all relevant legal materials justified doing so.” So what are senators to do?

In The Next Justice, I argue that the Senate should make three changes to the way it evaluates nominees to the Court:

1. Evaluate nominees the way that presidents do. George W. Bush knew exactly what he was getting when he appointed Roberts and Alito to the Court. More generally, political scientists and historians have shown that presidents accurately assess the values of their nominees by looking at their past records. Nearly all the relevant information is available to senators, too. They should not hesitate to make judgments on the basis of it.

2. Put the burden of explanation on the nominee. If senators can judge nominees on the basis of their records, what is the point of holding hearings? To give the nominees a chance to explain. Senators, though, should not hesitate to put the burden of proof on the nominee. If a nominee with a starkly partisan record claims to be nothing more than a neutral umpire, that is a good reason for a senator to vote against confirmation.

3. Give up the quest for the ‘smoking gun.’ Senators and the public often seem to treat confirmation hearings as an oral examination. Nominees who pass are entitled to confirmation. That puts an impossible burden on the senate: smart, well-coached nominees have no trouble producing bland answers to tough questions.

Will the Senate be able to make these changes? I do not know, but I think it is possible. Twenty years ago, the Bork hearings made America wonder whether the confirmation process had become too political. Now, two decades later, the Roberts and Alito hearings—and the performance of those two justices on the Court—should make America wonder whether the confirmation process is not political enough.

The Senate more or less allowed Roberts and Alito to characterize themselves as mere umpires. They might be the last nominees allowed to hide behind that myth. Just as the Bork hearings begat the ritualized hearings on Roberts and Alito, so too those hearings might beget more searching inquiries in the future.

Posted 9:22 AM by Chris Eisgruber [link]

Comments:

Reading this post leaves one with the impression that the Senate is looking for nominees that will promise to defer to elected officials. But isn't the opposite more often the case? Aren't the most controversial nominees (like Bork) those whom the Senate suspects will defer to the legislature? At least with justices nominated by Republican Presidents, the confirmation process ironically involves attempts by elected officials to extract promises from the nominee that he/she will stop either Congress or the state legislatures if they try to do x,y or z.

# posted by

mls : 9:57 AM

Will the Senate be able to make these changes? I do not know, but I think it is possible.

I wish I could share your optimism, but I don't. There's a long history of Senatorial deference to Presidential nominations. Indeed, it's reached the point where many people seem to believe that the President is somehow entitled to free reign in his selection of justices (failing, IMO, to distinguish between administrative appointments, where that policy makes sense, and judicial ones, where it does not).

Aren't the most controversial nominees (like Bork) those whom the Senate suspects will defer to the legislature?

I don't understand this suggestion. Nominees like Bork and Thomas (the two most controversial in recent times) were controversial precisely because everyone suspected that they would NOT defer to the legislature, particularly on issues such as interstate commerce. Both were suspected of being all too willing to strike down current practice in favor of their beliefs about 1790.

On a somewhat different note, Roberts (whose nomination wasn't very controversial at all) and Alito were suspect out of concern that they would defer to the Executive rather than the Legislature.

I'd say you've got the concerns exactly reversed.

# posted by

Mark Field : 11:26 AM

Since before the Roberts and Alito nominations the Senate has had all the authority it needed to ask nominees their views on cases likely to come up. In 2002 the Supreme Court, in Republican Party of Minnesota v.White, 122 S. Ct. 2528 (2002), struck down a state judicial code provision that barred candidates for elected judgeships from speaking out on matters of the sort the Senate Democrats were trying to glean from the nominees' delphic platitudes.

Republican Party of Minnesota, penned by Antonin Scalia and reliant on opinions by William Rehnquist, runs arguments about compromised impartiality into the ground, hails first amendment principles and the public's right to know, and points up the absurdity of requiring people to vote for pigs in a poke. At one point Justice Scalia wrote:

Even if it were possible to select judges who do not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice's mind at the time he joined the Court was complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.

If views on likely but not pending cases can be vented to a public electorate selecting state court judges for fixed terms without compromising impartiality, it follows as night follows day that candidates for lifetime appointment to the nation's highest court have no excuse for not doing so in hearings before the Senate committee charged with reviewing their qualifications.

The only way it begins to make sense to distinguish Republican Party of Minnesota is to whittle the Advice and Consent power down to the size of a rubber stamp, and that indeed describes the dynamic of a confirmation process whose visible aspect featured the claim that the President was entitled to an "up or down vote" notwithstanding the Senate's deliberative rules.

The result is a judicial branch that by degrees has been turned into an appendage of an executive on steroids while Senators alternate between tearing their hair out and twiddling their thumbs.

During the Roberts and Alito hearings I tried to bring Republican Party of Minnesota and its implications to the attention of Democratic Senators so they would get real with the nominees. Staffers I spoke to either said, "Oh, yes, we're on top of that – just watch what we do!" or promised to pass the word along to people in the trenches. I waited in vain to see my efforts bear fruit.

But as disheartened as this experience left me, I was unprepared to learn today, as I did in googling the case, that Senator Leahy was aware of it well before the nominations in question and that he in fact raised it in regard to Miguel Estrada's nomination, even quoting the excerpt included above. See his statement of March 13, 2003. http://leahy.senate.gov/press/200303/031303a.html.

Of one thing you can be sure: If a Democrat comes into the White House, the Republicans will use the case to frustrate efforts to restore balance to the judiciary.

An account of how and why the Democrats on the Senate Judiciary Committee failed to bring the case forcefully to bear on the Roberts and Alito nominations would figure in the better part of a so far unwritten chapter on how the face of our republic is coming more and more to resemble the Cheshire cat's grin.

# posted by

occasional observer : 12:20 PM

I enjoyed the first of the three installments of the series on the 'Surprising Legacy...'. As with most timeslices, however, the context of the authorship of these helpful three articles will explain somewhat more than the mere text. Which is to say, if I may state my personal view, Prof. Tribe's democracy-protective refutations in re Bork nomination were the work of Tribe's own genius and rhetorical flexibility. Bork crumbled because of his iron ideology. Finally, if I may respond to the last of the three articles, the attempt to place into political context the work of the supreme court justices, indeed, of nominees to those posts, appears to omit some unmentionable background with respect to the comity in the US Senate. In a way, nomination hearings are very much part of the same process which produces omnibus spending bills in congress, and, as one commenter observed, Sen. Leahy and his investigative crew may opt to keep powder dry based on motivations superficially unrelated, but actually part of the mechanics of passing laws and whipping a constituency into alignment. As some of the elders retire from congress, it will be interesting to see to what degree there is a similar enhancement of perspicacity of the interrogations of nominees; part of the complexity for congress people is understanding the problems of our day, as well as the intentions of the minority which seeks to divert the flow of jurisprudence by parliamentary moves applied to the nomination process.
In summary, I would add praise for prof. Tribe; and would suggest the senators be more energetic in employing attribution to some of the fine advocacy groups for ample dossiers those NGOs have produced in a timely way pre-hearing and even pre-nomination.

# posted by

JohnLopresti : 3:10 PM

Mark Field:

Nominees like Bork and Thomas (the two most controversial in recent times) were controversial precisely because everyone suspected that they would NOT defer to the legislature, particularly on issues such as interstate commerce.

I think you're the one who has things backwards, and wrong as well, in claiming that the real worry was interstate commerce rather than abortion (where the fact that judicial conservatives might defer to legislatures is precisely what drove the opposition).

# posted by

Stuart Buck : 5:10 PM

I think you're the one who has things backwards, and wrong as well, in claiming that the real worry was interstate commerce rather than abortion (where the fact that judicial conservatives might defer to legislatures is precisely what drove the opposition).

I'd agree that there's a sense in which the right wing has argued "deference to the legislature" when it comes to abortion.* I disagree that abortion was the only issue of concern with either Thomas or Bork. In both cases, the concerns extended far beyond that. And I don't think anyone was under any illusions when it came to Roberts and Alito, but in neither case was abortion the focus of concern for many opponents.

*As more than one abortion opponent has admitted to me, their real view is that the 14th A gives constitutional protection to the right to life. They don't actually believe the legislature should have the power to decide; that's just a convenient argument. What they really want is a court decision banning abortion on constitutional grounds.

# posted by

Mark Field : 7:30 PM

Huh? Is Mark Field suggesting that the constitutionality of the Gun-Free School Zone is the salient constitutional issue of our time? Or that right-thinking left/liberals were worried that the Supreme Court would permit medical marijuana? Because there are Commerce Clause cases, but I really don't think they drive the national political discourse.

# posted by

sean : 7:52 PM

Mark Field:

I'd agree that there's a sense in which the right wing has argued "deference to the legislature" when it comes to abortion.* I disagree that abortion was the only issue of concern with either Thomas or Bork. In both cases, the concerns extended far beyond that. And I don't think anyone was under any illusions when it came to Roberts and Alito, but in neither case was abortion the focus of concern for many opponents.

As is usual, principle falls far behind expediency, particularly on matters of great personal import. The distinction between whether the Constitution says too much or too little, whether the judges are "activist" or "strict", whether the legislature is overstepping its permitted role, whether the federal gummint is too strong or too weak, and whether the preznit is acting like a dictator or a wuss, depends mightily on what someone specifically wants to happen. Watching Nino expound on unseen "principles" in the Constitution revealed through an Eleventh Amendment that says no such thing is just one example....

Abortion, of course, has become a surrogate for the troglodyte faction's dying grasp on a past social milieu that will never be again, but that doesn't make their angst over such any the less real. And as such, that one issue is bound to turn principle on its head for such, and they will gladly extol the virtue of Federal and state action, whatever they can get, or even Constitutional Amendment, in that one aim. Little do they know that this wouldn't slake their thirst in the least in that personal hell they have constructed for themselves.

Cheers,

# posted by

Arne Langsetmo : 7:55 PM

sThe trouble with any discussion of "judicial restraint" is that it has two alternate, perfectly defensible meanings. One is deference to other branches of the government. The other is a narrow and text-bound reading of the Constitution.

Sometimes these two meanings reinforce each other, as in the case of Roe v. Wade. But other times they clash, as in interpreting the commerce clause. Deferring to Congress on such here means interpreting "commerce" broadly, and interpreting it narrowly will bring the court into frequent conflict with the elective branch. And, as Mark says, there is now the issue of Presidential power versus Congress. Which one is more "restrained" to support?

# posted by

Essayist-Laywer : 8:32 PM

My initial point was that the Senate on the whole isn't looking for judges that will promise to be deferential to legislatures. Every Senator wants judges who are deferential on some issues, and some Senators may want judges to be deferential on all or virtually all issues, but most Senators are insistent that judges not be deferential on some issues. This is particularly true of the more liberal Senators, but it is also true of most, if not all, conservatives (remember the screaming about "activist judges" when the Supreme Court refused to annul a local taking of private property for commercial development).

I am not sure that anyone here actually takes issue with this point, though it is hard to tell.

I also observed that the most controversy has been generated by concerns that judges would be overly deferential on particular issues, rather than the reverse. Mark Field takes issue with this observation, claiming that the greatest controversy about Bork and Thomas involved concerns that they would not be deferential, particularly on issues such as interstate commerce.

Well, I wouldn't disagree that there have been substantial controversies about refusals to be deferential as well (affirmative action would be an example). And I suppose it is somewhat subjective as to which has raised the greatest controversy.

But consider Kennedy's famous speech: ""Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.'"

Of these points only one, the segregated lunch counters, would seem to refer to a refusal to be deferential (if the implication was that Bork would strike down the civil rights laws) and even this could equally refer to a willingness to be deferential (if the implication was that Bork would not have struck down state-mandated segregation). In any event, I think it is clear that Kennedy's concern is not with whether Bork was sufficiently deferential to legislatures, but whether he would reach the "right" result in cases that Kennedy cared about (and that in most cases one would reach the "right" result by refusing to be deferential).

BTW, Arne- thanks for sharing your perspective on the pro-life movement. We troglodytes are so lucky to have advanced men such as yourself to explain the true meaning of our angst. How else will we ever learn tolerance?

# posted by

mls : 11:18 PM

MLS:

BTW, Arne- thanks for sharing your perspective on the pro-life movement. We troglodytes are so lucky to have advanced men such as yourself to explain the true meaning of our angst. How else will we ever learn tolerance?

No charge. Abortion (or anti-abortion anxiety) is a relatively recent phenomenon (even within the Catholic church, well-known for their staunch current hard-line anti-abortion stance). I'd note that it's not just "abortion" that gets people's panties twisted; the Catholic church, for instance, is vehemently anti-birth-control (for reasons best left to themselves or their shrinks [or accountants?] to explain), but the phenomenon extends to such as Dubya's "social conservative" appointees to health and family planning positions. Sex is not fun in their world; it's for having children ... despite the obvious evidence to the contrary. And it is this mindset that is what is driving the "troglodyte" right ... a Calvinism/abstinence/you're-all-sinners attitude towards life. I find such particularly unappealing, much as it might bring solace to those who think that life ought to be "nasty, short, and brutish" as it usta be. And thankfully, more and more people are also rejecting such a view.

But to each their own.

Cheers,

# posted by

Arne Langsetmo : 12:17 PM