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JUDICIAL APPOINTMENTS PROCESS

Bush Unwavering in Push for Conservative Bench Joan Biskupic

High Court Nominations May Hinge On FilibusterDebate; Senate Is Divided on Constitutionality Lyle Denniston

Bush Spurns Proposalon Court Picks; White House Rejects Democrats' Offer to Consult on Supreme Court Nominations David G. Savage 47

Getting Guns Ready for Next Nominations War Jonathan Groner and Tony Mauro 49

Ideology and the Selection of FederalJudges Erwin Chemerinsky 53

The Limited Nature of the Senate's Advice and Consent Role John C. Eastman 58

40 Bush Unwavering in Push for Conservative Bench; White House Gets its way on Many Judgeships

USA Today

May 8, 2003

Joan Biskupic

WASHINGTON -- Filibusters dominate the headlines, and Republicans and Democrats * Refused to compromise with Democrats say the Senate's judicial confirmation process who have pushed for more moderate is broken. But a defiant Bush administration candidates. After a Senate committee is pushing through most of its plan to make rejected Owen and Mississippi trial judge the federal bench more conservative. Charles Pickering, the administration simply nominated them again to the U.S. appeals Two years ago Friday, President Bush court that covers Texas, Louisiana and announced his first slate of proposed judges. Mississippi. Since then, the White House consistently has refused to surrender to Senate Democrats * Remained focused, even when Democrats who have tried to block conservative took control of the Senate in mid-2001, on nominees from lifetime appointments to the finding conservatives who Bush believes bench. would narrowly interpret individual rights and not try to use the courts to solve In all, 123 nominees have been approved to perceived problems in society. (Republicans the 862-seat judiciary during the past two now hold a 51- 48 edge in the Senate, which years. And though Senate filibusters of has one independent.) Washington lawyer Miguel Estrada and Texas judge Priscilla Owen have drawn "From the very beginning, the president has much attention, the White House has won emphasized the need for a Senate approval of several other eminent well-functioning . . . federal judiciary," says conservatives. They include a leading states' Viet Dinh, assistant U.S. attorney general in rights advocate, a scholar who has argued the Office of Legal Policy. "That emphasis against abortion rights, an opponent of the has not wavered." Supreme Court's landmark Miranda ruling that requires police to read suspects their Two long-pending nominees, Washington rights, and two controversial former aides to lawyer and Los Angeles judge Sen. Strom Thurmond, R-S.C. Carolyn Kuhl, are scheduled for votes today in the GOP- led Senate Judiciary committee. Overall, the administration has: One question is whether Kuhl -- who as a Reagan administration lawyer sought to * Preserved a strategy of tightly controlling reverse Roe vs. Wade, the ruling that the selection process, including eliminating legalized abortion nationwide -- will face a the 's 50- year role filibuster. in screening candidates.

41 "The president has fought and will fight for far-right." Owen, who is on Texas' Supreme his nominations," says a senior Court, has drawn criticism for opinions administration official shepherding against young women seeking to get nominations. He noted that when Bush abortions without telling their parents and for announced his first nominees May 9, 2001, decisions in which she favored business over he emphasized their significance by workers. presenting them in the White House's historic East Room. For all the wrangling over nominations, Democrats have joined with the GOP to Of those 11 nominees, seven have been approve 123 of Bush's 184 picks since spring confirmed. Roberts, who has Democratic 2001. support, could become the eighth. The remaining three are Owen; Estrada, the first Vermont Sen. Patrick Leahy, ranking Hispanic nominated to the appeals court for Democrat on the Judiciary Committee, says the District of Columbia Circuit; and Democrats have not been obstructionists. Terrence Boyle, a North Carolina trial judge "The president has been a divider and not a tapped for an appeals court covering Mid- uniter with many nominees. We have drawn Atlantic states. a line with a few of his most extreme choices." "The president appears to be going for broke," says Barbara Perry, a government Last week, the Senate voted 52-41 to professor at Sweet Briar College in Virginia approve Jeffrey Sutton, a Columbus, Ohio, who follows judicial nominations. lawyer who successfully argued states' rights cases at the U.S. Supreme Court. Advocates Bush's push for a more conservative bench for the disabled protested him, saying his continues amid anticipation of a possible work undercut federal anti-bias protections. Supreme Court vacancy. Retirement rumors He joins the appeals court covering Ohio, constantly swirl around Chief Justice Kentucky, Michigan and Tennessee. William Rehnquist, 78, and Justice Sandra Day O'Connor, 73. Both were appointed by In November, after the GOP won Senate GOP presidents and may be inclined to retire control, two high-profile nominees were while a Republican is in the White House. approved for key appeals courts: University of Utah law professor Michael McConnell, The current atmosphere has led some known for writings against abortion and for analysts to say that if a high court opening equal government funding of non-religious arose, the administration would pick a hard- and religious programs; and former right nominee and Senate Democrats would Thurmond aide and trial judge Dennis Shedd, consider a filibuster to block the nominee. who overcame criticism that he unfairly ruled Stopping a filibuster requires 60 votes, rather against workers and consumers. than the usual majority of 51. Another ex-Thurmond aide, Terry Wooten, Democrats have closed ranks to filibuster was approved to a trial court post in South Estrada, a former clerk to Supreme Court Carolina. University of Utah professor Paul Justice . Some Democrats Cassell, an opponent of the Miranda criticize Estrada for declining to elaborate on equirement, won a trial court seat in Utah. his judicial views and call him "ultra

42 The Judiciary Committee is likely to soon and abortion rights. Bush is standing by reconsider Pickering, who was rejected by Pickering. Some Democrats say that could the panel when Democrats controlled it. mean another filibuster. They denounced his views on racial issues

43 HIGH COURT NOMINATIONS MAY HINGE ON FILIBUSTER DEBATE SENATE IS DIVIDED ON CONSTITUTIONALITY

The Boston Globe

June 2, 2003

Lyle Denniston, Globe Correspondent

WASHINGTON - Talk of a possible vacancy when Democrats brought it back to try to on the Supreme Court is rising with the head off two of Bush's nominees to federal arrival of June and the last month of the appeals courts - Miguel Estrada and Priscilla current term. If there is an opening, however, Owen. a nominee's fate may depend on what happens to the filibuster rule in the Senate, As the Supreme Court's future is pondered, now under siege. A filibuster, one of the the filibuster looms large in the background. Senate's most cherished eccentricities, is a debate that can go on and on - a blocking The filibuster is now under fierce challenge maneuver that works simply because it is so in all three branches of government. The hard to stop in a closely divided Senate. This most drastic form of a challenge would year, its use against lower court nominations involve a ruling from the Senate chair, has run on for months. occupied for the occasion by Vice President Dick Cheney, that filibusters no longer can The continuing slowdown on two be used against judicial nominees - a simple, conservative nominees is widely regarded as unmistakable display of power that could a rehearsal for coming battles if a Supreme leave the Democratic minority with no option Court justice retires and President Bush picks but to stall virtually all Senate business. a controversial replacement. "It is not called the nuclear option for Aware of that prospect, and frustrated by the nothing," said Elliot M. Mincberg, legal current filibuster, President Bush last month director of People for the American Way, a complained that "we are facing a crisis in the liberal group that supports the current Senate, and therefore a crisis in our filibustering. judiciary." This is not something that either Republican But the Democratic leader in the Senate, Tom or Democratic senators are actively talking Daschle of South Dakota, has said there is no about in public, because it looks drastic in the crisis and there is nothing wrong with the gentle- mannered Senate. But lobbyists seem filibuster rule. "If it ain't broke, don't fix it," preoccupied with it these days. he said in May. The precedent for filibustering judicial nominations was set in 1968 when Republican senators thwarted the Supporters of the option, like conservative Democratic nomination of Justice legal advocate Jay Alan Sekulow of the to become chief justice. The technique was American Center for Law and Justice, prefer not renewed on judgeships until this year, to call it "the constitutional option." They

44 argue that filibusters aimed at judicial resistance to mounting a legal argument that nominations are unconstitutional, and their the issue is none of the courts' business. The option would simply restore majority rule on Senate Legal Counsel will begin framing a those nominations. defense shortly.

Short of that option, there are other Each of the several options has its critics, but challenges building. The president, reaching there is no consensus yet that all of them deep into the Senate's own affairs, has ultimately will fail. suggested that the chamber speed up its process on judgeships. The Senate's own The new rumbling over the filibuster can be Republican leadership is seeking to weaken traced to simple numbers: the 100- member the filibuster rule. Senate is divided 51-49, with Republicans holding control. The filibuster this year has The rule is also under assault from a number taken that control away from them on at least of conservative activist groups. And among two court nominations. academics, there is a continuing debate whether the filibuster is unconstitutional. The Senate Rule 22, the filibuster rule, requires Senate will begin formal study of all of the 60 votes, not a majority of 51, to stop a options on Thursday, when its Rules filibuster and let the Senate proceed to a final Committee holds an afternoon hearing. vote. That means that if 41 senators want to keep a filibuster going, it can't be stopped One conservative group, Judicial Watch - a because 59 opposing votes would not be legal advocacy organization that in nine enough. years of existence has brought suit more than 100 times, mainly against the government - Although changing the Senate rules has filed a lawsuit claiming that the filibuster ordinarily would require only a simple of judgeship nominees is unconstitutional. majority of 51 votes, a proposed change can itself be filibustered, and another Senate rule Judicial Watch asked the US District Court to says it takes 67 votes (not 60) to end a strike down the filibuster rule and order the filibuster against a rule change. That means Senate and its officers to let the two pending 34 senators can block a rule change even if appeals court nominations come to a final 66 want it. vote - one that would ensure the nominees' confirmation. Senate rules would have to be changed to adopt President Bush's suggestion for a more In a rare display of agreement on the rapid timetable of Senate review of judicial emotionally charged subject of filibusters, nominees or to approve a Senate GOP the Senate last month voted unanimously and leaders' proposal to reduce in steps the votes without debate to defend itself against that required to shut off a filibuster, from 60 to 51. lawsuit. Both ideas, if they make it to the Senate floor, would be subject to filibuster. At this point, however, it is unclear what the Senate's defense will be. Some freshman Thus, two out of three options now being Senate Republicans have talked publicly discussed may be in for a seemingly endless about pursuing the constitutional claim in struggle. Advocates on opposite sides of the court themselves, so there may be some filibuster controversy, like Mincberg and

45 Sekulow, agreed that the two options would raise a parliamentary point that Rule suggested by Bush and Senate GOP leaders 22 does not apply at all to judicial could be doomed. nominations, and so a majority of 51 prevails. That is what has brought on talk of the third option. It would work this way: Republicans

46 Bush Spurns Proposal on Court Picks; White House Rejects Democrats' Offer to Consult on Supreme Court Nominations

Los Angeles Times

June 19, 2003

David G. Savage

WASH[NGTON -- The White House gave a (D-Vt.), the ranking Democrat on the "thanks, but no thanks" reply Wednesday to Judiciary Committee, said in a June 11 letter an offer from Senate Democrats to consult to Bush. with the president before he nominates any justices to the Supreme Court. President He noted that Senate Judiciary Committee Bush's top legal advisor left no doubt that the Chairman Orrin G. Hatch (R-Utah) has taken choice -- when or if there is one -- will be the credit for advising President Clinton to select president's alone. Ruth Bader Ginsburg and Stephen G. Breyer for the high court. "If a Supreme Court vacancy arises during his presidency, President Bush will nominate "Meaningful bipartisan consultation in an individual of high integrity, intellect and advance of any Supreme Court nomination" experience," White House Counsel Alberto R. would prevent a "divisive confirmation Gonzales said in a letter to Senate fight," said Senate Minority Leader Tom Democrats. Daschle (D-S.D.) on Tuesday.

Then "the Senate will have an opportunity to Sen. Charles E. Schumer (D-N.Y.), another assess the president's nominee and ... to vote Judiciary Committee member, offered Bush up or down," he added. a few possible nominees, including Republican Sen. Arlen Specter (R-Pa.). White House Press Secretary Ari Fleischer also dismissed the Democrats' offer as a Republican leaders and conservative scholars "1novel new approach" to choosing Supreme say they are taken aback by the Democrats' Court justices. claim to have a role in the nomination process. In the last week, several Democrats have written Bush to say that he could avoid a "I am astounded by those letters. Does battle over the Supreme Court by talking Charles Schumer think he is the president?" with them about a consensus nominee. asked law professor John Eastman.

"Istand ready to work with you to help select A former clerk to Supreme Court Justice a nominee or nominees to the Supreme Clarence Thomas, Eastman teaches at Court," Sen. Patrick J. Leahy Chapman University Law School in Orange and recently advised Senate Republicans on the constitutionality of filibusters. "The president has the sole power to nominate, and

47 only then does the Senate give its advice and clause in describing judicial appointments as consent," Eastman said. "a 50-50 deal."

Sen. John Cornyn (R-Texas), the newest She added: "The president, in this process, is Republican on the Judiciary Committee, also not more important than the Senate, and the urged Bush to ignore the Democrats. "Few Senate's not more important. They have to things would politicize our judiciary more work together." than to hand over control of the process for selecting Supreme Court justices to Boxer and other Democrats base their view individual members of the Senate," Comyn on historians who say that early drafts of the said. "Presidents, not politicians, nominate Constitution gave the Senate the power to justices." appoint officials. The final version of the Constitution, though, made it clear that the The debate about the Senate's role in power to nominate judges and other officials confirming judges is an old one, and it tends rests with the president. to flare up when Supreme Court seats are at stake. At the moment, there is speculation Liberal and conservative activists are gearing that one or more of the justices will retire this up for an all-out battle, and the Senate month at the end of the court's current term. Judiciary Committee has cleared its calendar for possible hearings this summer. The Constitution says the president "shall nominate, and by and with the advice and But none of the justices has hinted at consent of the Senate, shall appoint ... judges retirement; instead, they have spoken of their of the Supreme Court." plans for the fall session.

On Wednesday, Sen. Barbara Boxer Fleischer dismissed the talk of any Supreme (D-Calif.) cited this "advice and consent" Court nomination as "idle chatter."

48 GETTING GUNS READY FOR NEXT NOMINATIONS WAR

The Recorder

June 9, 2003

Jonathan Groner and Tony Mauro

WASHINGTON - As the clock ticks down to Committee Chairman Orrin Hatch, R-Utah. a possible retirement on the Supreme Court, Other senators say they have not beefed up partisans on all sides are gearing up for what their staffs yet, but some vacancies have been promises to be the bloodiest confirmation filled with veterans of past nomination wars - battle in a dozen years. such as Sen. Edward Kennedy's, D-Mass., new committee counsel Jim Flug, who first Republicans have already met in the worked with Kennedy in the 1960s. conference room of a D.C. law firm to brainstorm a campaign on behalf of any Outside government, the first tangible sign nominee. Senate Judiciary Committee that war councils are convening came on staffers are at the ready. And leaders of May 22, when about two dozen highly placed liberal groups are canceling vacations and Republicans gathered at the offices of Jones charting plans for the opposition fight. Day overlooking the Capitol.

"We've been preparing for this moment, The three-hour session brought together in really, since the day Bush was elected, or one room GOP executive-branch veterans of chosen," says Kate Michelman, president of earlier nomination wars over Bork and NARAL Pro-Choice America and a veteran Thomas, as well as key point people who of battles over Robert Bork in 1987 and hold the same positions today. Several Clarence Thomas in 1991. Republican Senate staffers were also present.

When the court term ends later this month, it "It was a collective sharing of memories is still highly possible that neither Chief about what happened then," says attendee C. Justice William Rehnquist nor Justice Sandra Boyden Gray, a partner at Wilmer, Cutler & Day O'Connor - the subjects of most Pickering who was White House counsel retirement rumors - will step down. But that when the first President Bush nominated has not stopped the speculation, nor has it Thomas. slowed the preparation throughout Washington in the event that President Bush Gray heads the Committee for Justice, a gets to fill the first Supreme Court vacancy in group that presses for confirmation of Bush nine years. judicial nominees. "The purpose was to "We have a fully staffed nominations unit inform the current people so they don't have and are preparing for a potential retirement in to reinvent the wheel," he says. addition to working on filling the empty spaces on the federal bench," says Margarita According to several people who were Tapia, spokeswoman for Judiciary present, Gray was joined at the meeting by

49 Charles Cooper, former assistant attorney since the start of the administration, was one general for legal counsel; Michael Carvin, of the current officials at the meeting. former deputy assistant attorney general for Kavanaugh declines comment, as do Cooper legal counsel, and Lee Liberman Otis, former and Carvin. Otis was traveling and assistant White House counsel and a founder unavailable for comment. of the who was a key player in Thomas' confirmation fight in 1991. One lawyer who was at the May meeting says a follow-up session has not been Cooper is now a partner at Cooper & Kirk, scheduled, but the GOP Senate aide says he Carvin is a partner at Jones Day, and Otis is wouldn't be surprised if one is held later this general counsel of the Department of Energy. month.

"This was a meeting of a group of John Nowacki, a conservative strategist who conservatives engaged in nomination fights declined to say whether he attended the in the past or the present who are concerned meeting, said Bush supporters are that we don't have another Borking," says a anticipating all-out war. "No matter who is GOP Senate aide who was not present but nominated, what we've seen so far with the heard about the meeting in detail. lower court nominees will pale in comparison," says Nowacki, director of legal Gray says ideological issues and the makeup policy at the Free Congress Foundation, of the Supreme Court didn't come up at the whose predecessors were also active during session, which was totally devoted to the Bork and Thomas battles. practical nitty-gritty issues. Nowacki says his group will defend Bush "We told them, 'Here's what to do if there is a nominees and also hopes to win public vacancy,"' Gray says. "Where to have the war support in the ongoing debate over the role of room, things like that." filibusters in blocking judicial nominations. That issue, currently the subject of Senate Says another lawyer who was present but maneuvering, could come to the fore if requested anonymity: "No specific decisions Democrats threaten to filibuster a high court were made at the meeting. It was simply nominee. about what to expect and how to prepare yourselves for it. An older generation of "Americans have a sense of fairness, and experienced hands were passing on their they will want to know why the Democrats insights to the current generation in the don't want an up or down vote," says executive branch and on the Hill." Nowacki.

Among the topics that participants say were discussed were the importance of developing ITCHING FOR A FIGHT a press strategy and the need to respond quickly to themes and issues raised by Democrats regarding a nominee. For their part, liberal groups that are likely to oppose a Bush nominee have yet to convene Several sources confirm that Associate a mass meeting on Supreme Court White House Counsel , who nomination strategy, but work is under way has been working on judicial nominations

50 researching the backgrounds of potential nominees. Michelman says she has already laid the groundwork with senators who favor the Nan Aron, longtime president of the right to choose. umbrella group Alliance for Justice, still holds out hope that no vacancy will occur. "We have made it clear we expect pro-choice senators to filibuster any nominee "Does the administration really want a big who does not view the right to choose as a fight a year before the election?" asks Aron, fundamental constitutional right," says whose group is the lead liberal umbrella Michelman. "Merely stating that Roe v. group on judicial nominations. "It certainly Wade is settled law is not good enough." didn't help the first President Bush that Clarence Thomas was fought over the year Ralph Neas, president of People for the before his re-election campaign." American Way, also says the filibuster option is part of the arsenal that opponents Aron also says that if there is a vacancy, will use if necessary. Since 60 votes are liberal opposition to a Bush nominee is not needed to end a filibuster, opponents would automatic. "I'm very serious about that," she need only 41 senators to block a nominee. says. "But we have a good shot at 51 votes too," But when asked about White House counsel says Neas, who was a key player in prior Alberto Gonzales - usually viewed as the battles as head of the Leadership Conference most politically palatable possibility for on Civil Rights. Neas says he and his family Democrats - Aron answers without took a vacation in January in anticipation of hesitation. the time demands a nomination battle will create for him this summer. Grass-roots "We would mount a fight on Gonzales," mobilization will be crucial to win, Neas says, Aron says. The target would not be Gonzales' and his 600,000 members are ready to form record on the Texas Supreme Court, but the core of a "progressive army" of millions. rather his work as White House counsel and his advocacy of administration policies on civil liberties, judicial nominations, and other NEW FACES ON THE LEFT issues. "We can and will prevail" against Gonzales or any other nominee that is opposed by a broad coalition, Aron says. Not all the leaders of the likely opposition are veterans of the Bork and Thomas battles. A grass-roots campaign on a Bush nominee Aron expects that labor and disabilities rights will look substantially different from the groups will be more visible. Most of all, Aron ones mounted against Bork and Thomas, predicts that environmental groups - minor says NARAL's Michelman. players in the confirmation battles over Bork and Thomas - will be important new Through its e-mail network, Michelman combatants. says, her organization can quickly contact 750,000 people. "This capacity to mobilize, "There's a level of awareness in the to educate, to inform, and to activate, is environmental community about the threat enormously powerful," she notes. involved in judicial nominations that was not

51 there even two years ago," says Douglas constitutional issues before the Bork and Kendall, executive director of the Thomas hearings, said in an e-mail last week, Community Rights Counsel, an "I'm thinking as little about this as I can environmental and land use group that has manage and am resisting requests to become focused on judicial nominees for years. involved. When the time comes, I suspect the force will become irresistible and I will get Environmental issues are the subject of only drawn in. But not without protest. For some a few Supreme Court cases per term, and the reason, I'm feeling fatalistic about things this court's track record is mixed. But the potency time around." of environmental laws can rise or fall on a wide range of Supreme Court rulings on issues of standing, the commerce clause, Tony Mauro is Supreme Court takings, 11th Amendment and the separation correspondent and Jonathan Groner is editor of powers, Kendall notes. at large at The Recorder's Washington, D.C., affiliate Legal Times. Kendall's group and Earthjustice -formerly the Sierra Club Legal Defense Fund - have formed an alliance to beef up environmental groups' research and advocacy in anticipation of a Supreme Court vacancy.

They, like others, are building files on the most-mentioned potential nominees, and they have been active on lower court nominees. A substantial number of senators opposing Miguel Estrada for the D.C. Circuit U.S. Court of Appeals have cited environmental concerns among others. Estrada's nomination, approved by the Senate Judiciary Committee, has been shut down by a months-long filibuster.

"We generated tens of thousands of messages into senators" on Estrada and other nominees, says Glenn Sugameli, senior legislative counsel with Earthjustice. For a Supreme Court nominee, he says, "We're talking about research, media, education, lobbying, outreach, networking, all of it. It will be a very high-profile issue for the national environmental community."

At least one other familiar face from past nomination battles has not gotten energized yet. professor Laurence Tribe, who advised Senate Democrats on

52 Symposium: Federal Judicial Selection in the New Millennium

IDEOLOGY AND THE SELECTION OF FEDERAL JUDGES

U.C. Davis Law Review

February, 2003

Erwin Chemerinsky

[Excerpt; some footnotes omitted] Early in American history, President George Washington appointed John Rutledge to be the second Chief Justice of the United States. II. Ideology Always Has Mattered in Judicial Rutledge was impeccably qualified; he Selection already had been confirmed by the Senate as an Associate Justice (although he never The debate over whether ideology should actually sat in that capacity). The Senate matter in the judicial selection process has rejected Rutledge for the position as Chief been about whether it is appropriate for the Justice because of its disagreement with to consider the views of Rutledge's views on the United States treaty the prospective judge during the with Great Britain. confirmation process. No one seems to deny that it is completely appropriate for the During the nineteenth century, the Senate President to consider ideology in making rejected twenty-one presidential nominations appointments. Presidents, of course, always for the United States Supreme Court. The have done so. Every President has appointed vast majority of these individuals were primarily, if not almost exclusively, defeated because of Senate disagreement individuals from the President's political with their ideology. Professor Grover Rees party. Ever since George Washington, explains that "during the nineteenth century Presidents have looked to ideology in making only four Supreme Court Justices were judicial picks. Some Presidents are more rejected on the ground that they lacked the ideological than others; not surprisingly, requisite credentials, whereas seventeen were these Presidents focus more on ideology in rejected for political or philosophical their judicial nominations. President Franklin reasons." Roosevelt, for example, wanted judges who would uphold his "New Deal" programs and During the twentieth century, nominees for President Ronald Reagan emphasized the Supreme Court also were rejected solely selecting conservative jurists. because of their ideology. In 1930, a federal court of appeals judge, John Parker, was Senates always have done the same, using denied a seat on the high Court because of his ideology as a basis for evaluating presidential anti-labor, anti-civil rights views. In 1970, nominees for the federal bench. the Senate rejected United States Court of

53 Appeals judge Clement Haynsworth largely Democratic voters want Democratic Senators because of his anti- union views. The Senate to block conservative nominees and then rejected President Nixon's next pick for Republican voters want Republican Senators the Supreme Court, federal court of appeals to block liberal nominees. This creates a judge Harold Carswell. political incentive for Senators to do so, and means that they certainly do not risk In 1987, the Senate rejected Robert Bork, alienating their core constituency by using even though he had impeccable professional ideology in evaluating nominees. qualifications and unquestioned ability. Bork was rejected because of his unduly Second, the lack of "party government" in restrictive views of constitutional law, recent years explains the increased focus on including rejecting constitutional protection ideology. During the last six years of the of a right to privacy, limiting freedom of Clinton presidency, the Republicans speech to political expression, and denying controlled the Senate. During at least the protection for women under equal protection. first two years of the current Bush presidency, The defeat of Robert Bork was in line with a the Democrats have controlled the Senate. If tradition as old as the republic itself. the Senate is of the same political party as the President, there obviously will be many Those who contend that ideology should fewer fights over judicial nominations. play no role in judicial selection are arguing Certainly, confirmation battles are still for a radical change from how the process has possible, such as through filibusters, or if the worked from the earliest days of the nation. President lacks support from a faction of his Never has the selection or confirmation own party. But the reality is that process focused solely on whether the confirmation fights are usually a product of candidate has sufficient professional the Senate and the President being from credentials. different political parties.

There is a widespread sense that the focus Finally, confirmation fights occur when on ideology has increased in recent years. there is the perception of deep ideological Indeed, this symposium, and others like it, divisions over issues likely to be decided by are a response to this concern. There are the courts. Now, for example, conservatives several explanations for why there is intense and liberals deeply disagree over countless focus on ideology at this point in American issues: the appropriate method of history. First, the demise in a belief in constitutional interpretation; the desirable formalism by the general public encourages a scope of Congress' power and the judicial focus on ideology. People increasingly have role in limiting it; the content of individual come to recognize that law is not mechanical, rights, such as privacy. It is widely that judges often have great discretion in recognized that the outcome of cases deciding cases. People realize that how concerning these questions will be judges rule on questions like abortion and determined by who is on the bench. affirmative action and the death penalty and Therefore, senators know, and voters countless other issues is a reflection of the recognize, that the confirmation process is individual jurist's views. Bush v. Gore enormously important in deciding the simply reinforced the widespread belief that content of the law. Interest groups on both the political views of judges often determine sides of the ideological divide have strong how they vote in important cases. Thus, reasons for making judicial confirmation a

54 high priority because they know what is at judges' views. The federalism decisions of stake in who occupies the federal bench. recent years--limiting the scope of Congress' powers under the commerce clause and section five of the Fourteenth Amendment, III. Ideology Should Be Considered in the reviving the Tenth Amendment as a limit on Judicial Selection and federal power, and the expansion of Confirmation Process sovereign immunity--almost all have been 5- 4 rulings that reflect the ideology of the Of course, the above description is not a Justices.12 Beyond the obvious controversial normative defense of the desirability of issues, like abortion, affirmative action, and considering ideology in evaluating judicial the death penalty, virtually all cases about nominees. Normatively, there are many individual liberties and civil rights are a reasons why ideology should be considered product of who is on the bench. Criminal in the judicial selection process. procedure cases often require balancing the government's interests in law enforcement First, most simply and most importantly, against the rights of individuals; this ideology should be considered because balancing will reflect the individual Justice's ideology matters. Judges are not fungible; a views. Decisions in statutory cases, too, are a person's ideology influences how he or she result of the ideology of the Justices. will vote on important issues. It is Frequently, in statutory civil rights cases, the appropriate for an evaluator--the President, Court is split exactly along ideological lines. the Senate, the voters in states with judicial elections--to pay careful attention to the likely consequences of an individual's presence on the court. Second, the Senate should use ideology precisely because the President uses it. This seems so obvious as to hardly require Republicans, who today are arguing for the elaboration. Imagine that the President Senate to approve nominations without appoints someone who turns out to be an regard to their views, are being disingenuous active member of the Ku Klux Klan or the when there is a President who is basing his American Nazi Party and repeatedly has picks so much on ideology. Under the expressed racist or anti-semitic views. Constitution, the Senate should not be a Assume that the individual has impeccable rubber-stamp and should not treat judicial professional qualifications: a degree from a selection as a presidential prerogative. The prestigious university, years of experience in Senate owes no duty of deference to the high level law practice, and a strong record of president and, as explained above, never has bar service. I would think that virtually shown such deference through American everyone would agree that the nominee history. should be rejected. If I am correct in this assumption, then everyone agrees that Finally, ideology should be considered ideology should matter and the only issue is because the judicial selection process is the what views should be a basis for excluding a key majoritarian check on an person from holding judicial office. 12 See, e.g., University of Alabama v. Garrett, 531 U.S. On the Supreme Court, the decisions in a 356 (2001); United States v. Morrison, 529 U.S. 598 large proportion of cases are a product of the (2000); United States v. Lopez, 514 U.S. 549 (1995).

55 anti-majoritarian institution. Once impossible to claim that a judge's ideology confirmed, federal judges have life tenure. A will not impact his or her decisions. crucial democratic check is the process of determining who will hold these Opposition to considering ideology must be appointments. A great deal of constitutional based on the latter argument: that even scholarship in the last quarter of a century has though ideology matters, it is undesirable to focused on what Professor Alexander Bickel consider it. One argument is that having the termed the "counter-maj oritarian Senate consider ideology will undermine difficulty"--the exercise of substantial power judicial independence. Professor Stephen by unelected judges who can invalidate the Carter makes this argument: decisions of elected officials. The most significant majoritarian check is at the [I]f a nominee's ideas fall within the very nomination and confirmation stage. broad range of judicial views that are not Selection by the President and confirmation radical in any nontrivial sense--and Robert by the Senate properly exists to have Bork has as much right to that middle ground majoritarian control over the composition of as any other nominee in recent decades--the the federal courts. Senate enacts a terrible threat to the independence of the judiciary if a substantive Opponents to the use of ideology in the review of the nominee's legal theories brings judicial selection process must sustain one of about a rejection.15 two arguments: either that an individual's ideology is unlikely to affect his or her But Professor Carter never explains why decisions on the bench, or that even if judicial independence requires blindness to ideology will influence decisions, it should ideology during the confirmation or selection not be examined because disadvantages to of a federal judge. Judicial independence such consideration will outweigh any means that a judge should feel free to decide advantage. cases according to his or her view of the law and not in response to popular pressure. As The former argument, that a person's such, Article III's assurance of life tenure and ideology is unlikely to affect performance in its protection against a reduction in salaries, office, is impossible to sustain. Unless one provide independence. Judges are free to believes in truly mechanistic judging, it is decide each case according to their clear that judges possess discretion and that conscience and best judgment; they need not the exercise of discretion is strongly worry that their rulings will cause them to be influenced by an individual's preexisting ousted from office. Professor Carter never ideological beliefs. In cases involving justifies why this is insufficient to protect questions of constitutional or statutory judicial independence. He subtly shifts the interpretation, the language of the document definition of independence from autonomy and the intent of the drafters often will be while in office to autonomy from scrutiny unclear. Judges have to decide the meaning, before taking office. But he does not explain and this often will be a product of their views. why the latter, freedom from evaluation Many cases, especially in constitutional law, before ascending to the bench, is a require a balancing of interests. The relative weight assigned to the respective claims often turns on the judge's values. Given the Stephen Carter, Essays on the Supreme Court reality of judicial decision making, it is Appointment Process: The Confirmation Mess, 101 Harv. L. Rev. 1185, 1198 (1988).

56 prerequisite for judicial independence in the moderate nominees. When President Bush former, far more meaningful sense. has picked moderates for the federal courts of appeals, they have sailed through the Another argument against considering confirmation process. For example, the ideology is that it will deadlock the selection Senate quickly confirmed Bush's selections process--liberals will block conservatives of Reena Raggi for the Second Circuit and and vice versa. The reality is that this is a Harrison Hartz for the Tenth Circuit. risk only when the Senate and the President are from different political parties. Even then, Finally, some suggest that using ideology is every Senate--including the Republican undesirable because it will encourage judges Senate during the Clinton years and the to base their rulings on ideology. The Democratic Senate today--has approved a argument is that ideology has to be hidden large number of presidential nominations for from the process to limit the likelihood that the federal bench. There have been times once on the bench judges will base their when a number of nominations have been decisions on ideology. This argument is rejected, such as the Senate defeating every based on numerous unsupportable pick for the Supreme Court by President assumptions: it assumes that it is possible for Tyler and rejecting two nominations in a row judges to decide cases apart from their views by President Nixon. But in over 200 years of and ideology; it assumes that judges do not history, deadlocks have been rare. already often decide cases because of their views and ideology; it assumes that Most importantly, at times like now, when considering ideology in the selection process the Senate and the President are controlled by will increase this in deciding cases. All of different parties, the solution to deadlocks is these are simply false. Long ago, the Legal in the President's hands: nominate Realists exploded the myth of formalistic individuals who will be acceptable to the value-neutral judging. Having the judicial Senate. Presidents will have to select more confirmation process recognize the demise of moderate individuals than if the Senate was formalism won't change a thing in how controlled by their political party. President judges behave on the bench. Clinton undoubtedly was forced to select less liberal, more moderate judges, because the In summary, the argument for considering Senate was Republican-controlled for the last ideology in judicial selection is simple: six years of his presidency. President Bush people should care about the decisions likely would be far more successful in getting his to come from a court on important issues; the nominations through the Senate if he chose ideological composition of the court will less conservative individuals. The President determine those decisions; and the has the prerogative to pick conservatives like appropriate place for majoritarian influences Charles Pickering, Priscilla Owens, Carolyn in the judicial process is at the selection Kuhl, and Miguel Estrada, but he should stage. expect resistance in a Democratic Senate that would not be there if Bush selected more

57 Symposium: Federal Judicial Selection in the New Millennium

THE LIMITED NATURE OF THE SENATE'S ADVICE AND CONSENT ROLE

U.C. Davis Law Review

February, 2003

John C. Eastman

[Excerpt; some footnotes omitted] and should alone pay the price for choosing unfit nominees. Under the current system, I. The Framers of the Constitution Assigned Adams complained, "Who can censure [the to the President the Pre-Eminent President] without censuring the senate. . .? Role in Appointing Judges The appointment power is, Adams wrote, an "executive matter[]," which should be left entirely to "the management of the executive." James Wilson echoed this view: B. The Framers Envisioned a Narrow Role "The person who nominates or makes for the Senate in the Confirmation Process appointments to offices, should be known. His own office, his own character, his own Of course, there is more to the appointment fortune should be responsible. He should be power than the power to nominate, and the alike unfettered and unsheltered by Senate unquestionably has a role to play in counselors." the confirmation phase of the appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that The Senate's confirmation power therefore would not undermine the President's ultimate acts as a relatively minor check on the responsibility for the appointments he made. President's authority. It exists only to prevent As James Iredell, later a Justice of the the President from selecting a nominee who Supreme Court, noted during the North "does not possess due qualifications for Carolina Ratification Convention: "[a]s to office." Essentially, the Senate's offices, the Senate has no other influence but confirmation power exists to prevent the a restraint on improper appointments . . . . President from being swayed by nepotism or This, in effect, is but a restriction on the mere political opportunism. Assessing a President." candidate's "qualifications for office" did not give the Senate grounds for imposing an The degree to which the founders viewed ideological litmus on the President's the power of appointment as being vested nominees, at least where the questioned solely in the President can be gauged by the ideology did not prevent a judge from fact that John Adams objected even to the fulfilling his oath of office. Senate's limited confirmation role, contending that it "lessens the responsibility of the president." To Adams, the President C. Ideology Was Not Considered a Proper should be solely responsible for his choices, Reason for Refusing Confirmation, as Long

58 as It Did Not Prevent the Nominee From power threatens the separation of powers in Fulfilling the Judicial Oath three ways. First, it undermines the responsibility for appointments given to the In the founders' view, then, the Senate's President. Second, it demands of judicial power in the confirmation of judicial nominees a commitment to a role not appointees was extremely limited. It existed appropriate to the courts. Third, and, perhaps primarily, if not solely, to prevent the most importantly, the Senate's ideological President from exercising his power in an use of the confirmation power threatens the improper manner. Ideology--at least separation of powers by threatening the ideology of the kind that is unrelated to a independence of the judiciary itself. candidate's ability to fulfill his oath of office--simply had no place in the Senate's decision.... B. The Dangerous Tactics of Today's Judicial Confirmation Process II. The Current State of the Confirmation Power One of the most disturbing manifestations of the new process is the growing tendency of A. Why Ideology Matters to the Left the Senate to refuse even to hold hearings for nominees. This practice suggests not that the Despite the original understanding of the nominees are too far outside the ideological Senate's limited role in the confirmation mainstream to be confirmed, but rather that process, and despite the lessons learned from the Senators fear to vote down the nominees these early historical flirtations with the use on ideological grounds, precisely because of political ideology as a criteria for judicial they are not outside the ideological confirmation, the Senate today appears bent mainstream. on using its limited confirmation power to impose ideological litmus tests on Even those who argue that the Senate presidential nominees. In this way, the should take a large role in molding the Senate seems to be arrogating to itself the judiciary must acknowledge that blocking nomination as well as the confirmation nominations by refusing to hold hearings is power. an inappropriate tactic. The Senate has the power to advise and consent to a President's The Senate's expanded use of its nominees. The refusal to hold hearings at all confirmation power should perhaps come as is not advice or consent; it is political no surprise. As a result of the growing role of blackmail which perpetuates the critical the judiciary, the Senate's part in the number of vacancies on the federal bench. In nomination process has become a powerful fact, as one author has noted, senatorial political tool. And, like any powerful inaction is contrary to a resolution passed by political tool, it is the subject of a strenuous the very first Senate in 1789. "When competition among interest groups every nominations shall be made in writing by the time the President seeks to fill a judicial President of the United States to the Senate, a vacancy. Nevertheless, it is a tool that poses future day shall be assigned, unless the grave dangers to our constitutional system of Senate unanimously direct otherwise, for government. In its current manifestation, the taking them into consideration . . . and the Senate's ideological use of the confirmation

59 Senators shall signify their assent or dissent but the outright refusal to hold hearings, or to by answering, viva voce, ay or no." refer nominees to the floor of the Senate for a vote, deprives the President of even this Moreover, the current strategy of delay that remedial power. Such a tactic eventually appears to be the mainstay of the present forces the President to accede to demands to Senate Judiciary Committee threatens to nominate individuals more to the liking of intrude upon the Executive's powers, in individual Senators. The delay tactics appear violation of core separation of powers designed, then, to transfer the nomination principles. Improper attempts to impose power from the President to the Senate, a ideological litmus tests by voting down the result that the founders greatly feared. President's nominees could be countered by re-nomination of like-minded individuals,

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