Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
At The Daily Beast today, Jeff Greenfield with an interesting, though utterly unpersuasive, explanation on why a certain octogenarian Supreme Court justice hasn’t yet packed up her office:
It’s a question that’s roiled the liberal universe for years: Why won’t 81-year-old Supreme Court Justice Ruth Bader Ginsburg resign from the Supreme Court and give President Obama the chance to pick her successor, in case the Senate turns Republican after the mid-terms?
Harvard Law Professor Laurence Tribe, one of the left’s jurisprudential heroes, had a ready answer to that question when it was posed to him at the University of California Santa Barbara late last month. There is, he said, not a chance in hell that this Senate would confirm her successor, no matter who he or she might be—not the way the process works today. And therein lies a tale about just how drastically the “advise and consent” process has changed, and why the smart bet would be on a paralyzed process, and perhaps even a Court with fewer than nine Justices, no matter what happens in November.
It bears noting that this is Tribe’s reading of the situation, not Ginsburg’s (at least as best we know). It’s entirely possible that the justice herself has far more prosaic motivations — maybe, say, she actually likes her job and thinks she’s still equipped to do it. One other salient point about this argument: it’s spectacularly dumb.
President Obama successfully appointed two liberal justices to the Court to replace Republican appointees (albeit apostates who had drifted to the left side of the Court). Are we really to believe that Ginsburg would cling to office because of a belief that the Republican minority in the Senate, running the risk of arresting its political momentum, would block the confirmation of one liberal justice to replace another? Even if that were the case, Justice Ginsburg isn’t daft. She’d have to realize that, as a relative matter, the process of getting her replacement confirmed would likely be much smoother now than at any point in the near future, when there may be a Republican Senate and/or a Republican president to contend with. Tribe’s argument just doesn’t land.
Putting that to one side, here’s the operative complaint:
Once upon a time, the Senate took that “advise and consent” phrase of the Constitution literally: They sometimes advised, but almost always consented, to a President’s choice.
Cue the “Washington is too polarized/why can’t we find consensus” handwringing about how overtly political the process has become in recent years. Fine, but the construction above makes it sound is if “advise and consent” is an edict to the Senate (the absurdity of which ought to be self-evident — why have a confirmation process if confirmation is supposed to be automatic?). Here’s the actual constitutional text:
[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
That doesn’t quite make the argument for the passive process. Nor does Alexander Hamilton in Federalist 76:
But might not [the president’s] nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
Now, granted, Hamilton seems to have envisioned objections that had a lot more to do with a nominee’s biographical qualifications for office (try reading that passage again without thinking about Harriet Miers) than their substantive views, but no such restrictions are present in the constitutional text. It’s not unreasonable to assume from that fact that members of the Senate are essentially left to their own discretion as to what reasons are sufficient to block confirmation.
All of which raises the following question: if you were a member of the United States Senate, how would you handle Supreme Court nominations from the opposing party? Would you reflexively oppose potential candidates who didn’t share your judicial philosophy? Or would give the president a wide lane and only oppose a nominee if you thought they possessed a trait that was unusually disqualifying? If the latter, what characteristics could turn you against a nominee? If the former, is there anything that could win you over to supporting a Democratic nominee — perhaps, for instance, the nomination of a liberal originalist?
Then there’s the question of the process itself: is a lifetime appointment for good behavior the best way to structure the Supreme Court? Or should we, as our own Richard Epstein has suggested, instead move to 18-year terms, staggered so that a new justice is nominated every two years? Or perhaps something else?
What do you think?