The Republicans in the Senate have finished their three day demonstration of discontent over confirmation of judicial nominations. The demonstration was accompanied by commentary about a “downward spiral” in Senate treatment of judicial nominations by the preceding and current Presidents. (To be accurate, the commentary preceded the Republican event. See Solum.) Focusing on the current crop of controversial nominations, the number is absurdly small. Six out of over 160 nominations – less than 5%. The comparison with the Clinton nominees undercuts a claim that these are troublesome numbers or that there is a downward spiral.
It is uncontroversial that the Senate has the right to consent or not to the nominations. There are a couple of candidates for the kinds of reasons the Senate might properly consider in deciding whether to confirm. One is what we might call bare credentials. Does the nominee have the basic qualifications – a license to practice law, no felony convictions, etc. (Clinton nominated and the Senate confirmed at least one nominee who not has an active license, in what looked like a favor to Orrin Hatch.
A second is political ideology, and third is judicial philosophy. In broad strokes, the Senate might consider the political views of the nominees, or, alternatively, the nominee’s views about how to perform judicial tasks, i.e., the interpretive tasks of judging. To believe that there is something objectionable about the Senate’s failure to confirm a few of Bush’s nominees one needs to believe that there is some significant difference between the two. No doubt it is an attractive distinction, and also quite hard to maintain on any close examination.
One normal line of argument for the distinction is to acknowledge ‘gaps’ in the law. Gaps seem to entail a high degree of stability in the edifices between which the gaps appear. Politics appear in the gaps. Let us assume that the gaps are the arena for politics. Surely, this is a significant area of action, and one the Senate properly is concerned with. Congress, after all, can change the gaps through legislation, and, presumably, it is the nominees views about resolution of issues within the gaps that motivate (in part) nomination. If the President is free to nominate on that basis, the Senate surely is free to refuse to consent on the same grounds.
Of course, judicial philosophy and ideology run together, even assuming relative stability in the legal edifice and a judicial philosophy aimed at minimizing change in the that edifice. The two are effectively indistinguishable in the analyzing the boundaries of the legal edifice – unless one assumes complete internal consistency in fact, which is rather implausible. Which suggests that it is proper for the Senate to decline to confirm a nominee whose political views it finds objectionable. Justice Brown’s belief that Lochner doctrines should be revived is properly considered during deliberation concerning her possible confirmation. Not to consider such beliefs would be either an abandonment of duty by the Senate or an affront to the integrity of the nominee – an assertion that the nominee lacks either good faith or the courage of any conviction.
There is no reason to think overt consideration of politics will result in a shortage of qualified nominees or good nominees, or even excellent nominees. The ‘market’ here is rather seriously over-supplied with candidates. There are thousands of lawyers s and judges qualified under any standard to serve as judges, trial or appellate, in the federal courts. (Anyway, the ‘unfairly narrowing the pool’ argument is ridiculous. When was the last time anyone who was a member of the ACLU got nominated and confirmed? Are we supposed to believe that the ACLU has not good lawyers among its members?)
The consideration of political ideology is not itself a ‘downward spiral’. It has alswys been there, and there is nothing inherently suspicious about this. Perhaps then we should concerned that an ever-widening range of political views are considered detrimental to a nominee. E.g., in the past, a Nixon Republican would be acceptable but is not now. (Such a person would be pretty liberal for Bush to nominate.) Maybe so. But acceptable political views change over time, and should. But that shift, at least currently, is rightward, not leftward.