Politics & Policy


For the law, for the Court, for the Constitution, for the nominee…

It wouldn’t be summertime in Washington if speculation weren’t running rampant about the possibility of a retirement announcement from the Supreme Court. But whatever the time frame for a Supreme Court vacancy, the process for selecting the next associate or chief justice should reflect the best of the American judiciary–not the worst of American politics. We deserve a Supreme Court nominee who reveres the law–and a confirmation process that is civil, respectful, and keeps politics out of the judiciary.

History affords us some important benchmarks for determining whether the Senate has undertaken a confirmation process worthy of the Court and of the American people. There is a right way and a wrong way to debate the merits of a Supreme Court nominee. The Senate’s past record, unfortunately, has been mixed.

Whoever the nominee is, the Senate should focus its attention on judicial qualifications–not personal political beliefs. Whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan personal attacks. And whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries: confirmation or rejection by majority vote.

Whoever the nominee is, the Senate should focus its attention on judicial qualifications–not personal political beliefs.

We should not be surprised if a person of the stature and legal ability to be considered for appointment to the Supreme Court has spent at least some time thinking, and perhaps speaking and writing, about the important and sensitive issues of the day. But a nominee should not be punished simply for exercising his talents. After all, judges swear an oath to obey and to apply the law–not their own personal, political views.

When President Clinton nominated Ruth Bader Ginsburg to the Court in 1993, senators knew that she was a brilliant jurist with a strong record of service in the law. Senators also knew she served as general counsel of the American Civil Liberties Union–a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. And they knew she had previously written that traditional marriage laws are unconstitutional; that the Constitution guarantees a right to prostitution; that the Boy Scouts, Girl Scouts, Mother’s Day, and Father’s Day are all discriminatory institutions; that courts should force taxpayers to pay for abortions, against their will; and that the age of consent for sexual activity should be lowered to age 12. The Senate nevertheless confirmed her by a 96-3 vote.

Similarly, Stephen Breyer (nominated in 1994 by President Clinton) and Antonin Scalia (nominated in 1986 by President Reagan) are brilliant jurists with strong records of service. Breyer had previously served as chief counsel to Senator Ted Kennedy on the Senate Judiciary Committee, and his nomination to the Court was opposed by many conservatives because of his alleged hostility to religious liberty and private religious education, while Scalia was known to hold strongly conservative views on a number of topics. The Senate nevertheless confirmed them by votes of 87-9 and 98-0, respectively.

The confirmation proceedings of Ginsburg, Breyer, and Scalia provide a helpful model for future behavior. Each of those nominees enjoyed exceptional legal credentials. Each possessed strongly held personal political views. And each commanded the support of a broad bipartisan majority of senators.

Whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan personal attacks.

Any debate over the next nominee to the Supreme Court must be conducted with respect and honesty. At a minimum, senators can disagree without being disagreeable. At a minimum, senators can debate the issues honestly, and refrain from distorting and misrepresenting records and rulings.

Unfortunately, respect for nominees has not always been the standard.

Lewis Powell was accused of demonstrating “continued hostility to the law” and waging a “continual war on the Constitution,” and Senate witnesses warned that his confirmation would mean that “justice for women will be ignored.” John Paul Stevens was charged with “blatant insensitivity to discrimination against women.” Anthony Kennedy was scrutinized for his “history of pro bono work for the Catholic Church” and found to be “a deeply disturbing candidate for the United States Supreme Court.” And David Souter was described as “almost Neanderthal,” “biased,” and “inflammatory.” One senator said Souter’s civil rights record was “particularly troubling” and “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” That same senator condemned Souter for making “reactionary arguments” and for being “willing to defend the indefensible,” and predicted that if confirmed, Souter would “turn back the clock on the historic progress of recent decades.” At Senate hearings, witnesses cried that “I tremble for this country if you confirm David Souter,” warning that “women’s lives are at stake” and even predicting that “women will die.”

The best apology for these ruthless and reckless attacks is for them never to be repeated again. Unfortunately, the record is not promising. Even before President Bush took office in January 2001, the now-Senate Democrat Leader told Fox News Sunday that “we have a right to look at John Ashcroft’s religion,” to determine whether there is “anything with his religious beliefs that would cause us to vote against him.” And over the last four years, this president’s judicial nominees have been labeled “kooks,” “Neanderthals,” and “turkeys.” Respected public servants and brilliant jurists have been called “scary” and “despicable.”

Unfortunately, honest debate about a nominee’s record has not always been the standard, either.

Records and reputations have been distorted beyond recognition. Rulings that stated one thing have been characterized to say precisely the opposite. For example, during the debate over the nomination of my former Texas Supreme Court colleague, Justice Priscilla Owen, I chronicled numerous examples of her previous rulings that were blatantly misrepresented by partisan opponents of her nomination.

Moreover, in recent weeks, we’ve begun to see a particularly odd tactic take form. Some lower-court nominees have been attacked for belonging to a movement that, to my knowledge, does not even exist–the so-called “Constitution in Exile.” What’s more, opponents of this fictional movement seem to talk out of both sides of their mouth. Senate Democrats excoriated Justice Owen in part for her refusal to adhere to an allegedly central tenet of the Constitution in Exile–the nondelegation doctrine. And it was four Ninth Circuit judges appointed by Presidents Clinton and Carter who recently used another alleged doctrine of the Constitution in Exile–the Commerce Clause–to strike down federal laws prohibiting the use of marijuana and the possession of child pornography. If a “Constitution in Exile” movement really exists, its membership seems to include Senate Democrats and Democrat-appointed federal judges.

Reasonable lawyers can and do often disagree with one another in good faith. They do so respectfully and honestly–without distortions and false charges of being “out of the mainstream.” We should likewise demand that the Senate restore respectful and honest standards of debate to the confirmation process.

And whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries–and that is confirmation or rejection by majority vote.

The rules governing the judicial confirmation process should be the same regardless of which party controls the White House or the Senate. Since our nation’s founding over two centuries ago, the consistent Senate tradition and constitutional rule for confirming judicial nominees–including nominees to the Supreme Court–has been majority vote. (In the case of Abe Fortas, his nomination to be chief justice was withdrawn, after a procedural vote revealed that his nomination did not command the support of a majority of senators.)

Indeed, throughout history the Senate has consistently confirmed judges who enjoyed majority but not 60-vote support–including Clinton appointees Richard Paez, William Fletcher, and Susan Oki Mollway, and Carter appointees Abner Mikva and L. T. Senter. Yet for the past two years, a partisan minority of senators tried to impose a 60-vote standard on the confirmation of President Bush’s judicial nominees. Thankfully, that effort was recently repudiated, when the Senate restored Senate tradition by confirming a number of this president’s nominees by majority vote.

The effort to change our 200-year custom and tradition by imposing a new and unprecedented supermajority requirement for confirming judges is dangerous to the rule of law, because it politicizes our judiciary and gives too much power to special interest groups. As law professor Michael Gerhardt, a top Democrat adviser on the confirmation process, has written, “the Constitution also establishes a presumption of confirmation that works to the advantage of the president and his nominees.” According to Professor Gerhardt, a supermajority rule for confirming judges “is problematic because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of the special interests.”

Senate Democrats have recently asked to be consulted about any future Supreme Court nomination–even though the Constitution provides for the advice and consent of the Senate, not individual senators, and only with respect to the appointment, not the nomination, of any federal judge. If senators want such a special role in the Supreme Court nomination process, the president should first insist on their commitment to the three principles described above.

After years of unprecedented obstruction, and destructive politics, we must restore dignity, honesty, respect, and fairness to our Senate confirmation process. That is the only way to keep politics out of the judiciary.

John Cornyn (R., Texas) is an United States senator from Texas and member of the Senate Judiciary Committee. He previously served as Texas attorney general and, for 13 years, as state-supreme-court justice and district judge. .


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