Supreme Court Confirmation–What’s the Standard?

At The Corner, there is an extremely interesting dialogue between Charles Krauthammer and Andy McCarthy (who is becoming, on what seems like a daily basis, an ever more indispensable voice on the right). Krauthammer’s current column is on Judge Sotomayor; he concludes:

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds — consistently violated by the Democrats, including Sen. Obama — that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

McCarthy takes Krauthammer to task for overstating the deference that Congress owes the President on judicial nominations:

Presidents are certainly entitled to deference on executive branch nominees. After all, they will be part of his team and the power they exercise is exclusively his. If they seem resistant to corruption, competent, and have performed reasonably well in other positions, they should be confirmed. But the same lax standard does not apply to judicial nominees. They are chosen to be members of a different branch of government, and they wield great power for the rest of their lives (unless they choose to retire) — the consequences of their appointment to the bench are often felt for decades after the president who nominated them is gone.

McCarthy’s distinction is a sensible one, but it has no clear basis in the Constitution. Article II, Section 2 does not distinguish between executive and judicial appointments:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law….

The Constitution gives no guidance as to what standard should guide the Senate in consenting to appointments. The fact that it does not distinguish between executive and judicial appointments does not necessarily mean that different standards shouldn’t apply, but again, the document itself suggests no such standards. It is also worth remembering that the assumption that the President is entitled to his own executive “team” is a modern one–in the 1860s the Tenure of Office Act and the impeachment of Andrew Johnson arose of out Congress’ attempt to control the Cabinet.

Intuitively, I agree with McCarthy that the Senate should give the President more latitude on executive than judicial appointments. I suspect that a survey of modern history would find some such trend. It would also show that Democrats and Republicans have not shared a common view of the Senate’s role, especially with regard to judicial nominations. Republicans have been much more of Krauthammer’s opinion–a President is entitled to the judges he appoints unless some disqualifying factor appears. Democrats have been much more willing to oppose judges simply because they disagree with them politically. Possibly this is because through most of our recent history, Republicans have controlled the Presidency.

Conservatives and Republicans should work toward a coherent, principled standard for consenting to judicial appointments. It makes no sense for the parties to apply different criteria to the Senate’s “advise and consent” role, and it is by no means clear that Constitutionally, the Democrats’ willingness to scrutinize nominees for judicial philosophy and political bent is wrong. It strikes me that a principled statement of the Senate’s role would have to fall somewhere between “we disagree with the nominee’s politics” and “the nominee is grotesquely unqualified.”

No doubt others have investigated this subject deeply. Readers who are aware of such scholarly efforts are invited to direct our attention to them via comments. Remember that all comment submittals must include the first and last name of the commenter.

UPDATE: Andy McCarthy responded to this post at The Corner, here. Andy suggests that we don’t need to be so “legalistic” as to have a standard. In effect, as I read him–he doesn’t put it this way–Andy thinks Republicans should adopt the Democrats’ practice of supporting or opposing nominees on whatever basis Senators consider reasonable, including, I take it, mere political disagreement. The constraint, Andy argues, is that the Senator must answer to his constituents at the polls. That describes the Democrats’ practice quite well, I think. It explains why Democratic Senators from liberal states like New York and Illinois feel free to oppose pretty much any Republican nominee, while Senators from states like Nebraska and Louisiana tend to vote for such nominees.

Still, I don’t think it’s merely legalistic to think that it would be good for conservatives to coalesce around a principled basis on which Democratic judicial nominees can be evaluated. It seems to me that the happy medium–somewhere between abject surrender to the President’s prerogative and opposition based simply on political disagreement–lies somewhere in the zone of judicial philosophy. (This assumes, obviously, that the nominee is qualified in terms of experience and competence, as Sonia Sotomayor, for example, clearly is, and is not disqualified by any purported scandal that might emerge.) I will have more to say about this in due course.


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