Bench Memos

No More “Presidential Prerogative,” Please

In today’s Washington Post, Ed Gillespie argues that, since Senate Democrats–emphatically including then-Senator Obama–changed the “historic standard for confirmation to the nation’s highest court” when so many of them voted against Chief Justice Roberts and Justice Alito, the Republicans should repay them in kind by being equally tough on President Obama’s eventual nominee to the Supreme Court.

I agree with Gillespie about what the Senate Republicans should do, but not with his account of why they should do it nor with his rosy view of pre-Roberts history.  In Gillespie’s view, it’s tit-for-tat time:

Republicans cannot accept the premise that it’s okay for liberals to vote against Supreme Court nominees who believe in a strict constructionist judicial philosophy but not okay for conservatives to vote against those who embrace empathetic activism on the bench.

But this would not be (as he calls it) “a principled approach” to “changing their previous position,” not at any rate according to Gillespie’s own version of history.  It would be more like acting on the old Scottish motto nemo me impune lacessit: no one provokes me with impunity.  It’s a fine motto, but hardly a principle.

Here’s Gillespie’s somewhat potted history:

In 1993 and ‘94, Republicans voted overwhelmingly to confirm Clinton’s nominees on 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 when it came to the unique intersection of the executive, legislative and judicial branches encompassed in the Supreme Court nomination and confirmation process. On the basis of this understanding, 41 of 44 Senate Republicans voted to confirm Ginsburg and 33 of 42 voted to confirm Breyer.

Nowhere in history, but only in the fond daydreams of presidential administrations, can one locate this “tradition” of granting presidents a “prerogative to fill Supreme Court vacancies” checked only by the Senate’s interest in the barest of qualifications “in terms of temperament, experience and intellect.”  Correction: In one recent administration, foolish senators too bought this bogus idea, and naturally they were Republicans.  In the paragraph omitted where my ellipses appear above, Gillespie quotes Senator Orrin Hatch seeming to embrace this abdication of senatorial responsibility–the very kind of “leadership” that led to the disgracefully high numbers of Republican votes for Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994 (votes of which Gillespie seems bizarrely proud).

But even Hatch said something that could have been turned to better account if he and his colleagues had thought it through.  As Gillespie quotes him, Hatch said in 1993 that the “most important” criterion for assessing a judicial nominee positively was “clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government.”  A little later, Gillespie quotes Senator Obama during the January 2006 debate on Samuel Alito’s nomination as saying that “a judge’s philosophy, ideology, and record” ought to matter most.  That’s precisely right.  But how is that different from weighing the nominee’s view of the “proper role of the judiciary”?  The only difference between the stated views of Hatch in 1993 and Obama in 2006 is that Obama took his own words seriously.  When Gillespie remarks that Democrats considering Republican nominees–unlike Republicans considering Democratic ones–wanted to talk about “how they thought the nominee might rule on important cases in the future,” he suggests there was something unseemly about such discussions.  Some of us would say that is just what senatorial advice and consent ought to be about, and it’s high time it became the received wisdom on the Republican side of the Senate.

Gillespie says such “encroachment on executive prerogative is unfortunate, and its polarizing effect is unhealthy.”  But, to repeat, the so-called “prerogative” has no foundation in the text or principles of the Constitution, and there’s scant evidence for it in historic practice.  As for the “polarizing effect” of senators’ consideration of “judicial philosophy,” this is exactly the kind of polarization the country needs more of.  Both the Republican party and the Constitution would be the beneficiaries.  And it would indeed be a “principled approach” to changing Republican habits–not because the Democrats have provoked Republican ire, but because Republicans were foolishly blameworthy during the last Democratic administration for having the wrong idea of what a devotion to constitutional principle requires.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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