Bench Memos

NRO’s home for judicial news and analysis.

Consultation vs. Pre-Nomination Veto


Once we set aside the frivolous argument that the Constitution requires or contemplates that the President engage in pre-nomination consultation with senators, two additional points bear emphasis:

1. The President over the past four years has engaged in an ongoing process of consultation with senators, including Democrats. That process continues. The President and other Administration officials have made clear the qualities that the President is seeking in Supreme Court justice and other federal judges. Senators are free to communicate their own views on those qualities and on specific candidates and have done so. There is no reason to doubt that the President is giving those views due consideration.

2. What Senate Democrats really seek isn’t consultation, but the power to exercise a pre-nomination veto. They want the President to run by them the specific candidates that he is seriously considering so that they can decide whom, if anyone, to pre-clear. As Andy McCarthy has explained, the Framers clearly opposed this sort of role for senators and recognized that it would tend to produce bad nominees.

It is true that President Clinton pre-cleared his two Supreme Court nominees with Senator Hatch. But, as I have explained, the Democrats’ implacable ideological hostility to the sound jurisprudential approach that President Bush favors makes that example entirely inapt:

Apart from the fact that one should tremble to cite Clinton as a model of presidential conduct to emulate on anything, the Clinton-Hatch example provides a striking contrast to today’s situation.

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal — aimed at individuals whom Republicans disliked or who would create undue political difficulties for them — not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Bottom line: Lots of consultation has occurred and is ongoing. Senate Democrats have no right to a pre-nomination veto.


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