Monday, January 16, 2006
# Posted 9:57 PM by Ariel David Adesnik
A Supreme Court nomination isn't a forum to refight a presidential election. The president's choice is due deference -- the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.The editors of the Post put it somewhat delicately. To be more blunt, when you win a presidential election, you earn the right to appoint justices with your judicial philosophy.
Since there are very few openings on the court, there will always be a sufficient supply of nominees who have both the necessary credentials and will serve as advocates of the president's judicial philosophy.
The days of opposition senators voting for a nominee may be over, but I hope that they come back. (6) opinions -- Add your opinion
"The editors of the Post put it somewhat delicately. To be more blunt, when you win a presidential election, you earn the right to appoint justices with your judicial philosophy."
I missed this part of the Constitution. Is it in the footnotes?
It's right in there with the part that gives the Court the power to determine the constitutionality of state and federal laws.
But the power you speak of derives rather cleanly (one might even say "strict constructionistly") from Article III - which grants the Supreme Court and "such inferior courts" as Congress establishes the power to decide all "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" - and Article VI's supremacy clause.
So where does the Constitution say that the Consent of the Senate is required for judicial appointees who aren't obviously corrupt or incompetent?
Could you clarify that last question? I can't tell what you're getting at. (For real, I'm not being sarcastic.)
Anyhow, Article II, section 1 prescribes the procedures for electing a president. Article II, section 2 gives the president the right to appoint Supreme Court justices, with the advice and consent of the Senate.
It seems to me, this construction in no way makes the Senate a co-equal partner in the appointment process. The president wins the election and then gets to choose his nominees based on his criteria, including judicial philosophy.
Interestingly, justices are in the same category as ambassadors and "public ministers", who the president is obviously allowed to choose based on his own criteria.
Then again, "advise and consent" is a pretty vague term, so one could imagine an alternate universe in which it means appointing justices with neutral or no judicial philosophies, a la O'Connor.
But no one imagined that was the case, even with Breyer and Ginsburg.
I don't think this is a complicated Constitutional issue.
The President can choose anyone he damn well pleases, for whatever reason he wants, but his appointee will not become a justice - or an ambassador or a public minister - if the Senate refuses to give its consent.
In short, you're right that the President has the right to choose justices who match his "judicial philosophy," but you're wrong to infer that the Senate has an obligation to disregard judicial philosophy when it decides whether to confirm the President's appointee. Admittedly, this is less of a stretch than the idea that the Constitution mandates an "up or down" vote, but it is still a stretch.
I would say it is more a matter of norms and conventions whether disagreements over philosophy constitute sufficient grounds for the Senate refusing to confirm a judicial nominee. Given, like it or not, the high stakes of Supreme Court appointments, I don't see why judicial philosophy should not be a primary consideration for the Senate.
It was a hallowed tradition in our government for nearly 200 years that the President would get his man unlessPost a Comment
something emerged about his character that was disqualifying.
I think through most of the decades, when senators routinely held their noses and confirmed opposition politicians, it was thought to be one of the essential compromises which, from the beginning of the republic, were thought necessary--by everyone--to make the form of government work. It was one of the highest calls made on senators; it was a patriotic obligation. There were a few mavericks who abused the tradition over the years, but not many, and never a critical mass like the Democrats today. Using a filibuster to prevent a judge's confirmation was always unthinkable. (With Fortas, of course, it was the annual retainer from Las Vegas--a character problem).