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). This power of appointment gives presidents a tremendous upper hand in the process, but nothing obliges senators to confirm a president’s nominee if he is merely “qualified.” As University of Virginia political scientist Henry J. Abraham notes in his definitive history Justices, Presidents, and Senators (recently published in a fifth edition), “That the Senate takes its confirmation role seriously is documented by its refusal to confirm 30 of the 147 Supreme Court nominations forwarded to it in the more than two centuries of our history as a nation. (Some were not rejected per se, but were simply not acted on.)” Abraham’s total also includes some nominations that were withdrawn, such as that of Harriet Miers in 2005. Different tabulations can yield slightly differing figures due to resubmissions and other special cases; the official Senate list of Supreme Court nominations and their results is here. This one-in-five failure rate (one-in-three in the 19th century, and one-in-nine since then) requires some explaining. It turns out that the causes of failed Supreme Court nominations are as varied as those of any other kind of political failure. Sometimes a nomination’s failure had nothing to do with the nominee himself, but with the president’s other problems. Sometimes it had to do with the nominee’s political views on matters having nothing to do with judging — as when John Rutledge failed in a bid for confirmation as chief justice in 1795 because he had opposed the Jay Treaty with Great Britain. Sometimes it was a president’s failure to appease one or more powerful senators, or to choose a nominee satisfactory to particular interest groups or regions of the country. We might say that these aren’t good reasons to reject a Supreme Court nominee. But then, the mere popularity of a president, or the domination of the Senate by his partisans, or the desire to see a region, a religion, or an ethnic group “represented” on the Supreme Court, doesn’t constitute a good reason to confirm a nominee. Our history is replete with tales of Supreme Court nominations confirmed rapidly — in a few cases, mere hours after the Senate received them — for no better reason than that the president was powerful or the nominee was well-known and liked by senators. Sometimes, pace Professor Abraham, the Senate has not “take[n] its confirmation role seriously” at all, and the Supreme Court has often been the worse for it. Of all the reasons that affect the success or failure of a Supreme Court nomination, the most respectable ones have fallen into two broad categories; 1) the personal, namely the nominee’s character and ethics, his education and intellectual record, his perceived ability and competence to serve on our highest court, and his experience in law and politics; and 2) the judicio-political, namely the nominee’s expected behavior as a judge, his perceived support for or opposition to prior decisions of the Court, and his probable impact on the direction of the Court’s jurisprudence. In the history of Supreme Court nominations, the second category has easily weighed as much as (if not more than) the first in the estimation of presidents and senators. The roughly 80 percent success rate of Supreme Court nominations can be accounted for, not by a senatorial disinclination to consider judicio-political factors, but by the high number of cases when presidents and senators were in harmonious accord on what a “good judge” looked like. During the long stretches of our history when presidents and Senate majorities were commonly of the same party, it was hardly surprising to see a quiescent Senate rubber-stamping Supreme Court appointments. In eras of divided government, or in times when constitutional politics has been easily brought to a boil — and we have seen both of these at once for much of the last five decades — Senate quiescence vanishes. As Abraham writes:

The chief executive’s crucial predictive judgment concerns itself with the nominee’s future voting pattern on the bench, based on his or her past stance and commitment on matters of public policy insofar as they are reliably discernible. All presidents have tried, thus, to pack the bench to a greater or lesser extent. They will indubitably continue to do so.

If this is what — quite rightly — matters most to presidents, why should it not be what matters most to senators? And it often has, in successful nominations as well as failed ones. “Judicial philosophy” largely accounted for the 26 Senate votes against the successful confirmation of Mahlon Pitney in 1912; for the confirmation of Louis Brandeis in 1916 by only a plurality of the Senate, the majority either voting against him or not voting at all (it was not simply a tale of anti-Semitism, though it was partly that); for the failure of 35 senators to vote for Pierce Butler in 1923 (27 of them abstaining); and for the narrow majority of only 52 senators voting to confirm Charles Evans Hughes in 1930 (26 senators opposed, 18 abstaining). Judicial philosophy accounted as well for the defeat of John J. Parker’s nomination, also in 1930, and was not absent from the failure of sitting justice Abe Fortas’s nomination for chief justice in 1968 (though ethical difficulties clinched Fortas’s defeat and, a year later, his resignation). What was different about the Bork struggle in 1987? First, it took place in the era of full-scale committee hearings on Supreme Court nominations, complete with the nominee’s appearance as a witness (a normal part of the process only since the 1950s), and the hearings were televised nationally. Second, it occurred right after the Democrats had regained control of the Senate for the last two years of the Reagan administration, after being in the minority for the first six. And third, Bork was nominated to succeed Powell, one of the justices who made up the pro–Roe v. Wade majority on the Court. Scalia, by contrast, had filled a vacancy created by the retirement of Chief Justice Burger (technically, William Rehnquist succeeded Burger as chief justice and Scalia took over Rehnquist’s old seat). Burger had voted with the original majority in Roe but repudiated that vote in the last abortion case in which he participated, in 1986, so he was not pro-Roe at the time of his retirement. The shift in ideology that would have occurred if Bork had replaced Powell raised the stakes enormously, so of course Sens. Joe Biden and Ted Kennedy, and the major players in the Democratic coalition, painted him as an “extremist” who was “out of the mainstream.”

Was mud thrown at Bork in the most despicable fashion — charges and insinuations of racism, sexism, heartlessness? Absolutely. Could the Reagan team, and Bork himself, have handled the affair better? Undoubtedly. But it was not wrong for Chairman Biden to make the hearings turn on questions of judicial philosophy, because judicial philosophy is an entirely appropriate subject for a colloquy between senators and the nominee. What Biden was wrong about was judicial philosophy itself: The more he talked about it, the more one could see how clueless he was. In the end, Biden prevailed over Bork by foul means as well as (politically) fair ones, and the judge was defeated 58–42. Yet by airing the views of both sides, the episode was pivotal in advancing the cause of originalist jurisprudence — and that cause was not a loser, even if Bork was. If anything, Joe Biden did the Constitution a favor in 1987. The Bork struggle was a great Senate conversation about getting the Supreme Court right with the Constitution, and it showed us — by negative example, in Biden’s case — what such a conversation can and should sound like. The subject of judicial philosophy should not be banished to the periphery of this summer’s debate over President Obama’s Supreme Court nominee; it should be front and center. Now that the president has chosen a nominee in accordance with his “empathy” standard — a judge who has stated the view that judges make “policy,” a judge with a high rate of being overturned by the Supreme Court, and therefore a judge who would try to change the direction in which the Court travels — there is nothing better to talk about than Sonia Sotomayor’s philosophy of constitutional judging. That conversation should be carried on in the most pointed possible way.

– Matthew J. Franck is professor and chairman of political science at Radford University, a visiting fellow in the James Madison Program in American Ideals and Institutions at Princeton University, and a regular blogger at NRO’s “Bench Memos.”