BRIA 14 2 a An Issue of Consent

Realizing the importance of an effective judiciary, the framers of the Constitution gave both the president and the Senate a role in selecting judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary. But the Constitution did not define how the Senate should give its “advice and consent” on judicial appointments.

In recent years, a number of controversies have arisen over the appointments of both Supreme Court justices and lower federal judges. Some experts worry that the process has become too political, leading to bitter partisan struggles on ideological grounds. Some fear that, if this trend continues, not only will well-qualified individuals be discouraged from becoming judges, but that the ranks of the federal judiciary will be filled with judges more likely to make decisions on the basis of politics rather than by independent thinking.

It is not surprising that these concerns have arisen in the last three presidencies, those of Ronald Reagan, George Bush, and Bill Clinton. During these administrations, the president was often of a different party than the majority of the Senate.

Supreme Court Battles

The Constitution says nothing about the qualifications of Supreme Court members. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion—and more recently race and sex—have been additional factors considered by presidents trying to achieve a balanced court. Finally, most presidents want to put people on the Supreme Court who share their philosophy about government, the law, and the Constitution. But it is not easy to predict how a person will decide casesonce he or she gets on the Supreme Court.

The president may nominate a person for the Supreme Court for many different reasons. But what about the other side of the Constitutional equation? For what reasons may the Senate reject a Supreme Court nominee? Again, the Constitution is silent.

Shortly after the Constitutional Convention, Alexander Hamilton wrote in No. 76 of The Federalist Papers that there had to be “special and strong reasons for the refusal” of any presidential nominee. On the other hand, Hamilton recognized that the “advice and consent” requirement “would be an excellent check upon a spirit of favoritism in the President.”

Since 1789, when George Washington made his first Supreme Court appointments, the Senate has rejected 28 out of 139 nominations. Most of these rejections came about because the nominee lacked legal ability, was inexperienced, or had committed some unethical act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her ideas.

On July 1, 1987, President Reagan nominated Robert Bork, a conservative federal appeals court judge, to be an associate justice of the Supreme Court. His nomination raised a storm of controversy in the Senate controlled by the Democrats.

Reagan had already appointed two conservative members of the Supreme Court, and if Bork were confirmed, it would give the conservatives a solid four votes. Since at least one other justice frequently sided with the conservatives, Democrats feared that conservatives would control the nine-member Supreme Court.

Robert Bork, age 60, had excellent legal credentials as a law professor, legal writer, U.S. solicitor general, and federal judge. However, Bork was an advocate of “original intent,” a philosophy about how to interpret the Constitution. This means that he believed the Supreme Court should decide cases strictly according to the words and intent of those who wrote the Constitution in 1787. Bork objected to various Supreme Court decisions that he believed created new rights. From his point of view, this is the job of Congress, the state legislatures, or the constitutional amendment process. For example, Bork had noted in his writings that there is no right of privacy specifically mentioned in the Constitution. He objected to the 1973 Supreme Court ruling that recognized a privacy right for women, which allowed them to choose whether or not to have an abortion. He also questioned prior court decisions on pornography, the exclusionary rule, and prayers in schools.

Liberal senators were enraged over the Bork nomination. Democratic Senator Edward Kennedy protested that, “Robert Bork is wrong on civil rights, wrong on equal rights for women, wrong on the First Amendment and Ronald Reagan is wrong to try to put him on the Supreme Court.”

After a series of grueling hearings before the Senate Judiciary Committee, Robert Bork was rejected as an appointee to the U.S. Supreme Court. Conservatives cried foul, claiming no previous nominee had ever undergone such long and grueling questioning on issues of judicial philosophy. They also charged that liberal interest groups outside of Congress had targeted Bork for defeat because of his conservative beliefs. Senate liberals argued that Bork’s judicial philosophy placed him too far outside the mainstream to be a Supreme Court justice and that they had the right to reject him under their powers of “advice and consent.”

When Justice Thurgood Marshall, the Supreme Court’s only black justice, retired in 1991, it was President George Bush’s turn to nominate a justice. He chose Clarence Thomas, a federal judge and another African-American. Unlike Marshall, Thomas had a very conservative judicial philosophy and his nomination soon ran into trouble.

Anita Hill, a black woman and law professor, accused Thomas of sexually harassing her years before when they had worked together. In televised hearings, she gave a graphic account of her charges, which attacked the character of the nominee. For his part, Thomas refused to answer the committee’s questions about the charges, but likened the hearings to a “high-tech lynching,” a clear reference to a time in America when black men suffered hangings at the hands of white mobs.

At the end of the process, Clarence Thomas was confirmed as a Supreme Court justice, but charges and countercharges over the hearings continued. Conservatives claimed that Thomas had been unfairly attacked because of his judicial viewpoints. Several women’s political groups claimed that the committee was sexist in its treatment of Hill. Liberal Democrats accused the president of cynicism by appointing to the court an African-American conservative, a political viewpoint shared by relatively few blacks.

Battles Over Federal Judges

As president, Bill Clinton has nominated two Supreme Court justices, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. As moderates, both were confirmed by a Democratically controlled Senate and had bipartisan support. But when the Democrats lost control of the Senate to Republicans in 1994, new controversy erupted about the judicial confirmation process.

The process of selecting federal judges begins when the president receives recommendations from senators for candidates from their states. The president then makes nominations, which are forwarded to the Senate. The nominations are referred to the Senate Judiciary Committee, chaired by a member of the majority party. Committee members send the nominees questionnaires about their backgrounds and writings, which are scrutinized by the committee. The nominee may go through one or more hearings where they are questioned by the committee. The committee then makes its recommendations to the full Senate, which votes on the appointment.

When President Bush left office in 1993, well over 100 federal judge’s positions were unfilled. While President Clinton has filled over 150 positions in his term of office, as of March 1998 there were 87 vacancies with 48 nominations pending. Chief Justice William Rehnquist in his annual message on the federal judiciary pointed out that the number of vacancies was hurting the work of the federal courts and urged that they be more quickly filled.

Democrats charge that the reluctance to fill the vacancies is payback for the rejection of Judge Bork by the Democratic Senate during the Reagan years. They also charge that the Senate Judiciary Committee, with its Republican majority, is delaying the appointments of well-qualified and moderate nominees by making overzealous background checks and holding drawn-out hearings. They also complain that Republican leadership has delayed a full Senate vote on some nominees even after the Judiciary Committee has made a recommendation.

Republicans disagree, claiming that the Judiciary Committee is merely exercising its constitutional power of “advice and consent.” They assert that the review process takes a long time to adequately check the backgrounds of nominees and to assure that judges who are selected will not be “activists” but will follow the law and Constitution.

There is little question that conservatives in and out of Congress view the make-up and operations of the federal judiciary as an important issue. In 1995, shortly after Republicans took over Congress, Peter Rusthoven, a conservative legal writer, charged that, “The Clinton Administration and liberal-left interest groups almost certainly will try to use the federal courts to win through judicial activism results unobtainable through the democratic process.” He went on to call for conservatives to reject judicial nominees who demonstrated the “disease of judicial activism.” Also, a number of conservative organizations analyze the records of various judges and lobby against those who are deemed too liberal, just as liberal organizations lobby against those they consider too conservative.

The battles over the Supreme Court and the federal judiciary demonstrate that partisan politics have become a significant factor in the selection process in recent years. This development raises important questions. What factors should be taken into account when selecting a federal judge? Should a nominee be rejected on the basis of his or her political beliefs? What role should outside interest groups play in the process?

An even more important question is: What effect might such partisan politics have on the independence of the judiciary? Will qualified judicial candidates censor their writings or conform their opinions fearing that, if they do not, a federal judgeship is out of the question? Will qualified candidates refuse to even try to become judges rather than face a prolonged and bitter selection process?

The founders of our country saw the importance of having judges make decisions about law and the Constitution free from political pressure. Only time will tell if their wisdom will survive.

For Discussion and Writing

1. Explain how “advice and consent” is an example of “checks and balances.”

2. Why do you think Supreme Court justices and federal judges are appointed for life terms?

3. What effect might partisan politics in selecting federal judicial officers have on an independent judiciary?

4. Do you think judicial nominees should be asked about how they would decide a specific case? Should judicial nominees answer such a question? Why or why not?

ACTIVITY: Choosing Federal Judicial Officers

1. Which one of the following criteria do you think the U.S. Senate should follow in deciding whether to confirm or reject a U.S. Supreme Court or federal judge nominee? Take a vote in the class on this question and discuss the results.

A. Whoever the president nominates should always be appointed by the Senate.

B. Senators should reject a nominee only because of:

1. inadequate legal training

2. lack of legal experience

3. unethical behavior such as racial or religious prejudice

C. In addition to the reasons listed in part B, senators should have the freedom to vote against a nominee because they disagree with his or her ideas about the Constitution.
2. Next, meet in small groups to discuss whether Robert Bork should have been confirmed or rejected by the Senate. Keep in mind the choice you made in the first part of this activity.

For Further Reading

Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court, 2nd ed. New York: Oxford University Press, 1985.

Danelski, David J. A Supreme Court Justice Is Appointed. New York: Random House, 1964.



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