Is there a tradition or principle that the Senate, when giving its advice and consent on appointments to the Supreme Court, should defer to the president’s “prerogative” to choose a new justice? In recent articles, written before President Obama’s nomination of Sonia Sotomayor to succeed David Souter, some authors have invoked such a “tradition.” In this view, the Senate is meant to consider only the intellectual competence, professional experience, and ethical probity of Supreme Court nominees, leaving the matter of “judicial philosophy” to the nominating president.
Ed Gillespie, a former counselor to Pres. George W. Bush who was active in shepherding the nominations of John Roberts (2005) and Samuel Alito (2006) through the Senate, wrote in the Washington Post that the Democrats set a “different standard” in those two cases by considering the nominees’ judicial philosophy. They did this after reaping the benefits of the “tradition” when their own party’s most recent nominees — Ruth Bader Ginsburg (1993) and Stephen Breyer (1994) — went through the process with little resistance from Republican senators. The Democrats’ opposition to Roberts and Alito, Gillespie wrote, went against
the long-held premise that presidential elections have consequences, and one of the most important of them is a president’s prerogative to fill Supreme Court vacancies. If a nominee was qualified in terms of temperament, experience and intellect, senators should not vote against him or her for having a different judicial philosophy. . . . For most of our history, this perspective was broadly shared on both sides of the aisle.
In Gillespie’s view, today’s GOP should play by the rules the Democrats set in place four years ago — rules that he clearly thinks are new. (I’ve already made some comments on Gillespie’s article here.)
The Wall Street Journal’s Collin Levy also treats the “principle that [the Senate] owed the president deference on his judicial selections” as a traditional part of appointing Supreme Court justices. Levy, however, traces the break with that tradition to the 1987 donnybrook over Pres. Ronald Reagan’s unsuccessful nomination of Robert Bork to replace the retiring Lewis Powell. She blames it on then-senator (now vice president) Joe Biden, who chaired the Senate Judiciary Committee in 1987 and decided to oppose Bork because of his “extreme” and “outside-the-mainstream judicial philosophy” (as Biden wrote in his 2007 autobiography). As Levy recalls, Biden had all but endorsed the idea of a Bork nomination after the easy (98–0) confirmation of Antonin Scalia the year before, but appeared to feel the pressure of liberal interest groups as he geared up a run for the 1988 Democratic presidential nomination. Levy further argues that the fallout of the Bork nomination battle “has been toxic not only for the nominees but for the courts,” perhaps for the circuit courts even more than the Supreme Court.
Levy does not prescribe a course of action for Republican senators; Gillespie, as we’ve seen, recommends that GOP senators play hardball. But both regard this kind of battle as a regrettable development. They seem to pine for a lost golden age in which senators bowed to the chief executive’s electoral mandate and restricted their purview over Supreme Court nominees to questions of competence, experience, and personal integrity. If we believe in that golden age, then Republicans who question a nominee’s judicial philosophy are put on the defensive — notwithstanding Gillespie’s exhortations — and ought to have a bad conscience about intruding so undeferentially on a matter of presidential choice. For even if Democrats “started it,” wouldn’t the noble course of action be to knock it off?
But we don’t have to believe in that golden age, because it never really existed. Yes, something changed with the Bork nomination 22 years ago, but not everything about the change was bad, and neither was everything about it new.
Let’s begin with constitutional basics. Because the president “shall nominate” justices, the initiative rests with him. The Senate, whose “advice” has never mattered as much as its “consent,” can accept or reject the president’s nominee; a rejection forces him to send up another. Sometimes a rejection or delay at the end of a president’s term has caused the choice to fall into his successor’s hands (as happened in 1969, when Richard Nixon named Warren Burger to be chief justice after Lyndon Johnson’s choice, Abe Fortas, ran into trouble the previous year). And, of course, political pressures can influence a president’s choice (as when the acclamation of the legal community and leading politicians caused Herbert Hoover to nominate the universally admired Benjamin Cardozo in 1932).