How Would You Approach Supreme Court Confirmations?


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?

The response?:

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?


There are 16 comments.

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  1. bourbonsoaked Inactive

    I would reflexively oppose any nominee at this point in his Presidency due to the desire he would have to appease the base and the utter lack of desire to put someone qualified who would use discretion and common sense to think through these cases. He would appoint his own Harriet Miers, and few Democrats would stand up to him.

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  2. Frank Soto Contributor
    Frank Soto

    Since Bork became a verb, it is vital that Republicans play the same game. There is little nobility in yielding the field to the left, who will go to enormous lengths to block very conservative nominees.  The problem would be worse if they had no fear of Republicans blocking their very liberal nominees.

    I’m against unilateral disarmament in just about every area of the policy battle.

    This is why when they retake the senate, it’s vital that Republicans reciprocate use of the nuclear option on non supreme court nominees.

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  3. Sabrdance Member

    1.) There was a time when judges were bound by the Constitution, too.  I’m not sure what point Professor Tribe is making.
    2.) Were the Supreme Court acting as a court, rather than a Super Legislature or House of Lords, I would be deferential.  As it is usurping the legislative power at the behest of the executive, I see no reason for the actual legislature to defer to them.
    3.) Were I reforming the system, I’d leave good behavior in place, and just impeach a lot more of them.  In 200 years we’ve impeached 15.  Not removed, just impeached.  I do not believe in the slightest that there have only ever been 15 judges who misbehaved.  Hell, I don’t believe there are less than 15 judges currently serving who are not abusing their power in some way, be it diddling the clerk or shading their sentencing.
    4.) Given that I’m not going to get my way, then yes -politicize the process to the hilt.  If we are to have a political judiciary, then treat it as such.  Judges are just executive branch appointments that outlast the President.  Grill accordingly, and make the people vote accordingly.

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  4. user_989419 Inactive

    What Frank Soto said.

    Plus, our President continued to set the example when he voted against the confirmation of John Roberts.

    (Now, where on earth is my “I still believe Clarence Thomas” bumper sticker; it’s around here somewhere…)

    • #4
  5. Nick Stuart Inactive
    Nick Stuart

    To the question of why isn’t RBG retiring? Because she, like so many of the rest of our politicians and judges, is a flaming narcissist who’s going to have to be carried out feet first. Considerations of what will be best for her Leftist agenda take second place to her personal aggrandizement.  Just like Blackmun, Rhenquist, Marshall and the rest. It is absolutely a bipartisan problem. They all just simply stay on too long.

    At age 63, 70 is looking better all the time, but I know I’ve lost quite a few steps physically. And my observation has been that somewhere between the age of 70 and 80 the mind really does begin to go. Anyone blessed enough to be an exception can do us all a favor by moving on anyway and not running the risk of regressing. 

    Epstein’s idea of rotating 18 year terms with one rolling off and one rolling on every two years seems a good plan.

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  6. Inactive

    With regard to Ginsburg, I suspect she and her team know that even with a GOP Senate, it will not be difficult to gain confirmation.  Even an initial reluctance will soon give way under a media onslaught.  They know they won’t get a more lefty nominee that RBG, so they’ll ride that one to the deck, with little risk.  They’ll get what they want.
    Even if the GOP mans up and knocks down one nominee, the next one would sail through no matter what.  No way the likes of McCain and Graham could withstand the withholding of affection from the Sunday morning talk show circuit.

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  7. Inactive

    This is completely nonsensical.  Since the blatantly racist reasoning for blocking Miguel Estrada in 2002, I have been advocating that the GOP grow a substantial pair and start giving the Left a does of their own medicine.  Block, obstruct, otherwise destroy every nominee to any federal court the Dems throw up there.  Making these reasoned, constitutional arguments when dealing with the Left is like asking Israel to approach Hamas with a more reasoned response.  This is, while a good post and very thoughtful, merely mental masturbation.

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  8. user_86050 Inactive

    Frank’s right. Whatever the intended approach to nominations, the moment the process becomes politicized, you can’t just surrender one branch (and on social issues, probably the dominant branch) of government.

    By the same token, Ginsburg’s resistance speaks well for her. The calls for her to step down come from political animals, expecting her to think party first … in fact, to think of party exclusively. But the Supreme Court isn’t a zoo for partisan hacks … she’s a legal animal, not a political animal.  

    The country may have to fight it out politically, but that doesn’t mean that the justices must descend to partisanship. 

    (The difference? An ideologue follows a theory, but a partisan hack is just trying to promote the group he belongs to, and only because he belongs to it. If the Democrats switched and came out against immigration, a partisan hack would switch without shame. An ideologue, at least, would stick with the theory.)

    I’ve always sensed that Ginsburg isn’t a hack. I disagree with her philosophy, but I sense that she believes hers honestly … which I respect. She isn’t a hack.

    • #8
  9. user_231912 Inactive

    Rotating 18-year terms is a good idea, but insufficient.  As Justice Scalia has said (paraphrasing), the Senate is doing what it should be doing (having ideological arguments about proposed judges) when the bench has become a quasi-legislative body with no check on its’ authority.  It’s awful, it’s ugly, it’s tedious, but until judges come back around to textualism, a partisan argument about judges is what we have, and what we deserve.

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  10. Member

    Nick Stuart
    To the question of why isn’t RBG retiring? Because she, like so many of the rest of our politicians and judges, is a flaming narcissist who’s going to have to be carried out feet first.

    Related to this is the issue of power. They really should get new seats for that courtroom, I see the HBO store is selling replicas of Game of Thrones’ Iron Throne for only $30,000 a piece. Nine kings and queens rule over us.

    • #10
  11. user_653084 Inactive

    I would have opposed Sotomayor and supported Kagan.

    First and possibly foremost, I would expect any nominee to be a towering figure of the American bar. Whatever their ideology, the justices sitting on America’s highest court should have America’s best legal minds. I think it was entirely appropriate to oppose Sonia Sotomayor’s nomination on the same grounds. Sotomayor is a reliably liberal justices, but was a thoroughly undistinguished appellate judge and is by far the least intellectually impressive justice on the Supreme Court.

    I’m inclined to grant more leeway regarding a nominee’s jurisprudential philosophy that I think most Ricochet members are. I’m a originalist, but I would not oppose a nominee simply on the grounds that he is not. Textualism, on the other hand, is significantly more important to me and I would oppose a nominee had demonstrated a willingness to completely disregard statutory and constitutional text in order to achieve a desired outcome. In this respect, though far from an ideal justice, Elena Kagan is significantly more sound that is Sotomayor.

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  12. user_653084 Inactive

    I wholeheartedly agree with Epstein’s proposal for an elimination of life tenure in favor of a fixed term of 18 years, not only for Supreme Court justices but for the entire federal judiciary. That, along with the repeal of the 17th Amendment, would be my two major changes to the Constitution.

    • #12
  13. user_989419 Inactive

    I suppose one could make an original intent argument based on the average life expectancy at the time the Constitution was ratified.

    • #13
  14. Stad Coolidge

    Troy Senik, Ed.: Or perhaps something else?

    How about this:  every newly sworn in President gets to fire one of the Supreme Court justices (his choice), and nominate a replacement (still undergoing the Senate confirmation process)?  This way, every President will have an impact on the makeup of the court, and a two-term President would have a significant impact with two appointments.

    • #14
  15. Mister D Member
    Mister D

    As they say, elections have consequences and I believe a President has a right to pick who sits on his bench. Therefore, my preference would be to defer to the executive’s discretion so long as the nominee met a qualifying threshold (i.e. not Harriet Meyers). That said, I know full well the opposition party views this as a life and death struggle and will not in any way let a conservative justice through without doing their utmost to derail the nomination and discredit the nominee. Sticking to principle would over time cede the bench to the left via erosion, and in good conscience I could not let that be done. In short, I may prefer to play a gentleman’s game, but if the other side insists on throwing inside and sliding with spikes high, so be it.

    • #15
  16. Stad Coolidge

    Mister D: a President has a right to pick who sits on his bench

     Yes, the President has a right to pick who sits on the bench, but the Senate has the right to place that person on the bench – or not.

    • #16

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