TCS Daily


Judge's Dread No More

By Pejman Yousefzadeh - January 25, 2006 12:00 AM

As I write, it appears Supreme Court nominee Judge Samuel Alito will be confirmed. Despite the fact that he was not as charismatic and adept with the judicial soundbites as had been Chief Justice Roberts, Judge Alito convinced most that he had the intelligence and the command of the substantive law necessary to ascend to the Supreme Court.

To the extent that the Senate confirmation hearings are some kind of minefield where the nominee can be tripped up with an infelicitous comment on the issues of the day, Judge Alito managed quite adequately to avoid saying anything that might cause supporters to take a second look at his nomination, or opponents to believe that they might have been afforded a weapon with which to pummel him. Republicans are therefore confident that Judge Alito will soon be Justice Alito. Meanwhile, according to the New York Times, Democrats despair.

What matters now more than the Alito nomination is considering ways in which the judicial confirmation process can be reformed so as to ensure a more orderly consideration of judicial candidates.

Debunk the conventional wisdom

The first reform might be one that debunks the conventional wisdom concerning judicial nominations. Ever since the failed Bork nomination, it has been the assumption that the best kind of nominee is one who is exceedingly bright, whose views are well-known to (and accord well with the views of) the President making the nominations, and who has no paper trail. I imagine that Judge Alito meets with the first two criteria, but he does not meet with the third. Having spent fifteen years as a judge on the Third Circuit Court of Appeals, he has quite a long and pronounced paper trail with clear opinions on a whole host of issues. Conventional wisdom would -- and did -- warn that such a nominee would be in for a rough confirmation process; the "World War III" of judicial confirmation wars. And yet, the fight turned into pale reflection of the apocalyptic struggle that was promised.

What this indicates is that the public is significantly less afraid of the smart, credentialed and outspoken judicial nominee than the conventional wisdom would have us believe. We have reason to hope and believe that a nominee brave enough to put his opinions down on paper for a significant period of time will not be "borked" by the political process. Harriet Miers was initially favored -- and Samuel Alito disfavored -- by the Bush White House because it was thought that the lack of a paper trail would help Miers sail through the confirmation hurdles. As it turns out, the lack of a paper trail allowed critics of the Miers nomination to cast doubt on her qualifications for the Supreme Court. No such doubt exists in the case of the Alito nomination.

Ideology shouldn't matter much

Further reforms in the atmosphere surrounding judicial nominations can be implemented by ditching the belief that ideology should matter in the context of the nomination of a mainstream judge. Democrats have sought to make ideology an issue in the Alito nomination; and with Judge Alito's paper trail they had a lot of material to work with. But Democrats are now faced with the unappealing prospect that a mainstream conservative judge -- albeit a judge Democrats believe to be outside of the mainstream -- has failed to excite the ideological outrage necessary to defeat his nomination, and that future conservative judges will similarly get away with espousing certain views and yet moving up the judicial confirmation ladder.

If ever there were a test case in the post-Bork era for the proposition that a judicial nominee can be rejected for his/her jurisprudential philosophy, it would be the case of Judge Alito's nomination. Having made little effort to disguise his views and having served for nearly two decades on the Third Circuit Court of Appeals, Judge Alito could have been the poster boy for the use of ideology as a criterion for rejecting a judicial nominee. Instead, Judge Alito confounded those who believed that they could make his jurisprudential philosophy a basis for rejecting him and in doing so, advanced the alternative proposition that smart qualified judges in the mainstream of thought should generally be confirmed (absent significant and plausible accusations of unethical conduct). In the post-Alito era, this proposition can be advanced further by those who wish to depoliticize the judicial confirmation process and to ensure that adherence to a mainstream ideology -- of either the Right or the Left -- should not be a basis for rejecting a particular nominee.

It should be noted that this non-ideological approach to confirming Supreme Court nominees was in place for the nominations of both Ruth Bader Ginsburg and Stephen Breyer during the Clinton years. Despite their sincere differences with the jurisprudential ideologies of both Justices Ginsburg and Breyer, Republican Senators made little effort to obstruct their nominations and both Justices were confirmed by overwhelming and bipartisan majorities. In both cases, the ideologies of Justices Ginsburg and Breyer were overlooked as they were found by the Senate to be highly qualified and ethical candidates. The same approach should hold for future judicial nominees -- regardless of the ideologies they hold or the ideology of the President who nominates them.

A Free Vote: Putting aside partisanship

The effort to depoliticize the judicial confirmation process can be assisted by working to dilute the partisanship that is currently part of the Senate's consideration of judicial candidates. Standard operating procedure calls for judicial confirmation votes to be party-line affairs where the leadership of both the Senate Democratic and Republican caucuses lean heavily on their members to vote a certain way. As if this is not enough, special interest groups add to the pressure exerted on individual Senators to vote a certain way.

No one expects that the consideration of judicial candidates will be entirely free from politics. But the effort should be made to reduce the undue influence of partisanship. One way this can be done is to incorporate the idea of a "free vote" in the judicial confirmation process. A free vote will entail allowing Senators to vote their consciences without having their respective party leadership structures and special interest groups pressure the Senators to vote a certain way. Of course, under this scheme, there will be Senators who will choose to vote for or against a judicial nominee on the basis of ideology, but at least the party structure and interest group allies will not be actively working to make such votes unduly partisan. A free vote concept would have to be self-enforced but self-enforced agreements surprisingly have a history of working.

Witness for example the still-functional Gang of Fourteen agreement that imposed the requirement of "extraordinary circumstances" on the initiation of any filibuster against judicial nominees. The agreement is notable for helping Republicans, initial conventional wisdom notwithstanding, but it is most notable for its continuing workability. An agreement to adhere to a "free vote" concept for the consideration of judicial nominees can be enforced along the same lines.

The likely outcome of the Alito nomination has challenged and altered a great deal of traditional thinking regarding the judicial confirmation process. If the nomination proceeds to its expected end -- and if observers of and participants in the judicial confirmation process draw the appropriate conclusions from the likely outcome and base their advocacy accordingly -- they can change the judicial confirmation process for the better. Note that this means both Democratic and Republican Presidents will likely find it easier to get their nominees confirmed. This may give partisans on either side pause, but extreme partisanship should never be and should never have been an obstacle to an intelligent, sober and orderly confirmation process. If extreme partisans on either side want to influence the judicial confirmation process, they will have to do so by winning Presidential and senatorial elections in order to make it easier for candidates of their liking to get confirmed. And in a democratic republic, such is as it should be.

Pejman Yousefzadeh is a writer and lawyer living in California. He maintains the popular blog Pejmanesque.
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