Wittes on Reforming the Confirmation Process:

In contrast to Senator Kennedy's op-ed (which I discuss here), Benjamin Wittes offers a thoughtful essay in today's Washington Post on the judicial confirmation process, based in part on his interview of Chief Justice Roberts. (Interestingly, Senator Kennedy's essay is on the front page of the Post's Outlook section this morning, while Wittes' piece is buried on page 4.) Among other things, Wittes adds some useful historical perspective to the debate over judicial nominations.

As Wittes notes, judicial confirmation hearings have never been about the substance of a nominees views.

If the history of judicial confirmations proves anything, it is that the hearings were never meant to be a thoughtful inquiry into a nominee's judicial philosophy. Rather, their point has always been to wring concessions from would-be jurists or to tar them as unworthy. Since live testimony by nominees became standard after the Supreme Court's 1954 decision striking down segregated public schools, senators have sought to pressure nominees into swearing allegiance to contested ideas, or to make statements that provide ground for opposition.

That is what the hearings still achieve today. They function coercively not because they are failing their intended purpose. Coercion is their intended purpose.

Indeed, the nature of the political process is such that even if a serious probing of a nominee's substantive views were desirable (and I do not believe it is), such a dialogue would not occur in the Senate.

How should the hearings be conducted? Chief Justice Roberts' prescription does not sound so bad.

If there are serious questions about qualifications, senators should explore those. If there are serious questions about ethics, senators should explore those. If there are disputes about appropriate judicial philosophy and approach, talk about those. But barring that . . . everybody doesn't have to think that this is an opportunity for them to be the reincarnation of Clarence Darrow.
Wittes offers an alternative prescription: End nominee testimony.
The democratic moment is not the interrogation of the nominee. It is the point at which the people's representatives debate the nominee's record and cast their votes. Ironically, the hearings only obscure that moment. Many viewers probably remember Alito and Roberts demurring on how they would vote on abortion. But how many remember what a single senator said during the floor debate over either of them?
This is a good idea too, but I would not hold my breath waiting for it to happen.

I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote, largely based upon the nominee's record, qualifications, and character. In my view, the relevant "democratic moment" occurs during the Presidential election, but I realize this is anything but a consensus view. I also believe that past Democratic mistreatment or Republican nominees did not justify Republican payback during the Clinton presidency, and Republican malfeasance does not justify Democratic payback since.

However one believes the process should be reformed, there is a window for meaningful reform of the confirmation process. At present, neither party is particularly interested in endorsing "neutral" rules for the process. Senator Leahy, for example, proposed rles for ensuring quick consideration of judicial nominees during the Clinton Administration, but he would not support (let alone sponsor) that legislation today. The only real hope is for a majority of Senators to endorse a set of neutral procedures that will take effect after an intervening election -- preferably one far enough in the future that the outcome is indeterminate (e.g. an agreement in early 2007 to take effect in January 2009). In this way, both parties could endorse the reforms on their merits, rather than on their likely effect on either party's nominees. Similar ideas have been floated in the past, but there have not been many takers in the Senate.

Related Posts (on one page):

  1. Kennedy Correction:
  2. Wittes on Reforming the Confirmation Process:
  3. Senator Kennedy Assails Alito and Roberts:
David Krinsky (mail):
I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote, largely based upon the nominee's record, qualifications, and character.


Why is the election of a President a more important (or relevant) democratic moment than the election of the Senate (in our post-17th Amendment world)?

It seems to me that both the President and the Senate should strive to nominate well-qualified non-idealogues. But I don't see why the Senate should be deferential, any more than the President is deferential when determining whether to sign a bill, or the Senate is deferential in determining whether to sign a revenue bill that the House has (as is its constitutional right) originated and passed.
7.30.2006 11:38am
Andrew Hyman (mail) (www):
Any governmental actor should be deferential to another actor who is entrusted with originating a proposal. For example, the president should be deferential to legislation from Congress, even though the president can veto it. The SCOTUS should be deferential to reasonable constitutional interpretations made by the President in relation to military activities. The Senate should be deferential to nominations made by the President. Why else would the Constitution have given original authority to one actor instead of another?

Of course, that doesn't mean that a governmental actor should always "accept" the views of another actor who is entrusted with originating a proposal. But it's pretty clear that "respect" is built into the structure of the Constitution, IMHO.
7.30.2006 11:53am
tefta2 (mail):
To answer the question above, because naming justices is a presidential prerogative as dictated by the Constitution. The Senate's job is only to determine that no obvious malefactors are chosen. Well qualified non-ideologues are, like beauty, in the eye of the beholder.
7.30.2006 11:56am

I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote...

I believe this was an oversight by the Founders, that they failed to envision a protracted confirmation or even one that ends without a vote.

They set a time limit for the President to approve or reject a bill or it becomes law by default (if Congress is still in session.) Had they done the same for presidential nominations and required Congress to act by a certain time in order to reject them, it would be working pretty much as you (and I) think it should.
7.30.2006 11:58am
To answer the question above, because naming justices is a presidential prerogative as dictated by the Constitution. The Senate's job is only to determine that no obvious malefactors are chosen.

Can you point to the precise part of the Constitution that says that? I see the words "advice" and "consent"; I don't see the words "no obvious malefactors" or "only" or "prerogative".
7.30.2006 12:12pm
The notion of 'deferentiality' is profoundly at odds with the stated thinking of the Founders. Over and over again in the Federalist Papers, in Federalist Farmer, in Jefferson, and other writings you see the same theme: the best way to insure liberty is to set a cacophony of competing interests at odds with each other and let them work it out in debate. Over and over again they talk about the balance of competing interests. They are all for cooperation among such interests, but cooperation is a purely voluntary action. Deference connotes moral obligation, not free volition.

The Senate was designed by the Founders to pester the President, to hound him, to harass and annoy him at all turns. The suggestion that the Senate should be the President's lapdog is profoundly inimical to the ideas that infuse our Constitution.
7.30.2006 1:11pm
byomtov (mail):
I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote, largely based upon the nominee's record, qualifications, and character.

To what does the word "record" refer? To past decisions? If not that, then what? And if it is legitimate to vote based on a nominee's past decisions, why is it not legitimate to vote based on the nominee's views of past cases on which he did not rule, when the substance of the case is well-known?
7.30.2006 1:35pm
frankcross (mail):
I kind of like the present system. It recognizes that judges inevitably make ideological decisions and screens for their nature and extent. Moreover, the possibility of a confirmation fight deters the President from going overboard in nominating ideologues (or cronies). If somebody's going to be given life tenure, make them run a gauntlet. The record shows a high correlation between qualifications and confirmation, even controlling for ideology. A couple of good people may be unfairly denied confirmation in the process but that's a lot better than putting more bad people on the bench.
7.30.2006 1:44pm
Andrew Hyman (mail) (www):
Erasmussimo, you may be interested in a recent article by J. Richard Broughton in the Harvard Journal on Legislation, titled "RETHINKING THE PRESIDENTIAL VETO." Broughton argues that the President should show some deference to Congress, instead of vetoing any legislation with which the President disagrees:

The Constitution provides for a strong President, but not an omnipotent one. At the time of the framing, ratification, and the formative years of the Republic under the new Constitution, American political leaders understood that the veto was necessary to check legislative encroachments, protect the Constitution, and improve legislation by negating laws that were products of defects in the deliberative process or contrary to substantial national interests. However, after a series of transformative presidencies, and transformative events in the life of the Republic, modern practice asserts a broader and less anchored role for the veto. This has enabled modern Presidents to use the veto not simply to protect the Constitution or national interests, but as a policy-making device for dictating the content of national legislation. Presidents now occupy a potentially favored position in the creation of national legislation, a position at odds with constitutional text, history, and structure.
7.30.2006 2:12pm
Thanks, Andrew, for the link. I'll go read it and report back.
7.30.2006 2:37pm
Many of the abuses of the present judicial confirmation system could be avoided if nominees answered only written questions, in writing, and did not appear as part of a circus hearing. Surely the USSC could issue guidelines for nominees to that effect, citing the inability of the Congress to resist temptation and the dignity of the judicial branch as the reasons.
7.30.2006 2:46pm
Andrew, I have read the article you recommend (although I confess I skimmed over some sections that seemed to present material I was already familiar with). I reject Professor Broughton's case in its entirety. While I do feel that the Presidency has grown far too powerful, I do not believe that voluntary restraint on the President's part is the solution. Each President will bring his own notions of voluntary restraint to the party, and we'll get a lot of disparity as a result. Moreover, our current President has replaced the veto with the signing statement, and he has been citing Constitutional reasons, not policy reasons, for his many signing statements -- would this render his liberal use of the the signing statement acceptable under Professor Broughton's normative standards?

I believe that Presidents should have the power to use the veto as a policy-shaping instrument. Despite my concerns about excessive Presidential power, I think this a necessary component of those powers.

All in all, I reject the notion of deference from one branch to another. Each branch should execute its responsibilities with energy. What's the point of "checks and balances" if nobody is willing to check anybody else? What is the meaning of separation of powers when one branch scruples to enforce its separate powers?

If we want to get normative about all this, I would suggest that greater normative onus falls on Congress to start passing some Constitutional amendments to resolve some of the divisive issues of the day. For example, I'd much prefer to see a Constitutional Amendment defining the moment at which a fetus becomes a person. Let them all sit down and thrash out a compromise that nobody likes and everybody can live with. Draw a line. 3 months? 6 months? Pick a date and be done with it.

Yes, I know that this will never happen. But, like Professor Broughton, I'm being normative.
7.30.2006 3:35pm
Simon (391563) (mail) (www):
I'm puzzled by this idea that there is just one relevant democratic moment, and that the moment only occurs in the ballot box (in the case of presidential elections) or during the roll call (in the case of Senate votes). The whole idea of "democratic moment" is pretty squishy to begin with, but if you want to rely on it, then the least you can do is allow it some meat.
7.30.2006 3:56pm
Andrew Hyman (mail) (www):
Erasmussimo, I disagree. The first sentence of the Constitution says that all legislative power shall be vested in Congress. Roger Sherman explained the intent of the veto power that the Constitution vests in the President:

[T]he partial negative vested in the President by the new Constitution on the acts of Congress and the subsequent revision, may be very useful to prevent laws being passed without mature deliberation.

If the President is trying to leverage changes in a new law because of the President's policy preferences, then I think that the first sentence of the Constitution may come into play. Obviously, it's a political question that shouldn't be decided by the courts, but it's also obvious that abuse of the veto power can come into conflict with the first sentence of the Constitution.

Likewise, if the Senate extorts instead of advises the President as to appointments, then that impinges upon the President's exclusive power to nominate.
7.30.2006 4:22pm
Andrew, Professor Broughton's article made it pretty clear that he was presenting a normative argument, not a legal one. That is, he seemed to acknowledge that there is no solid constitutional basis for the recommendation he makes. He argues that the President should as a matter of principle confine himself to constitutional vetoes, not that he must as a matter of law so confine himself. Are you arguing that the Constitution itself forbids the President to make policy vetoes?

Your second paragraph is even more troubling. How can the Senate 'extort' the President? The President has the exclusive power to nominate and the Senate has the exclusive power to confirm. The exercise of those powers cannot constitute extortion by any reasonable interpretation of the term.
7.30.2006 5:10pm
Andrew Hyman (mail) (www):
I'll let you have the last word, if you want, Erasmussimo.

You say that each branch should execute its responsibilities with energy. Absolutely. All I'm saying with regard to the veto is that the President does NOT have a "responsibility" to veto every bill with which he disagrees. I don't think any President has ever advanced such a notion. Instead, every President that I know of has always shown at least SOME deference to the legislative branch, which after all has exclusive responsibility for "legislating."

Moreover, if a President says "I will veto every bill you send me until I get a bill that says precisely thus-and-such" then that would be extortion. The President would be usurping legislative power.

Likewise for nominations, it would be extortion for the Senate to give the President the name of someone who must be nominated, and then simply refuse to consider anyone else.

In my view, this kind of extortion would be not just unwise but also unconstitutional, albeit probably not justiciable.

As far as Broughton's article is concerned, you're right that he merely asked how the veto should be exercised "as a matter of wise and sagacious presidential and constitutional practice." Basically, that's what I was referring to in my first comment in this thread, and surely the answer to that question can be influenced by the constitutional text, the intent of the framers, et cetera. And as with most legal matters, there is a point at which "should" becomes "must."

I am not categorically arguing that the Constitution itself forbids the President to make policy vetoes. But I do believe that mere disagreement with a statute is not enough of a reason to veto it.

Anyway, thanks for the conversation.
7.30.2006 7:10pm
I suspect we're not that far apart. Between the two extremes of the President exercising only constitutional vetoes and the President vetoing everything that isn't perfect, I agree that the President would be prudent to lean more towards the former than the latter -- but I consider it a matter of prudent politics. If the President wants to get Congress to cooperate with him, he must cooperate with Congress. I have no objection to this kind of cooperation; it's the grease that smooths the path. Similarly, the Senate is prudent to treat the President's nominations cordially, if only to insure that it doesn't get locked into a head-on confrontation with the President. But it must also exercise its Constitutional duty for "advice and consent". It's all a a matter of nuance.
7.30.2006 7:41pm
Alaska Jack (mail):
jdmurray -

This was the exact topic of my first comment submission to the VC. Eugene asked readers (there were many fewer back then, I think) to submit their ideas for constitutional amendments. My amendment would have said, basically, that by refusing to give a given nominee a vote, the Senate was basically abdicating its responsibility to do so, and said nominee would be considered confirmed after the passage of a reasonable amount of time.

Naturally, this would apply equally to nominees of all parties.

- AJ
7.31.2006 5:37pm
Shalom Beck (mail) (www):
1. If the Supreme Court is going to legislate on abortion, the legislators are going to vote on Supreme Court Justices in relation to their own and the nominee's views on abortion.

2. The view that the President should veto only measures that in his opion are unconstitutional is part of the weak Presidency view that went out with the Civil War. If the Founders meant to fetter the President's discretion in this way, you would think they would have said something about it in the Constitution.
8.2.2006 2:59am