Supreme Court power play: Assessing the Appropriate role of the senate in the confirmation process

Washington and Lee Law Review, Summer 2001 by Yates, Jeff, Gillespie, William

Abstract

The Bush Administration will likely have the opportunity to make a number of appointments to the Supreme Court; however, such nominations may lead to contentious confirmation hearings in the Senate. When such an appointment opportunity does present itself, questions are bound to arise concerning the appropriate role of the United States Senate in the confirmation of Supreme Court nominees under the "advice and consent" provisions of Article II of the United States Constitution. Disputes over the Senate's proper role and scope of inquiry seem to emerge whenever a nominee has faced the confirmation process and have been a timeworn subject of legal debate. In this Article, we assess the proposition that the Senate should have an active role in the confirmation process, which includes investigation into a nominee's ideological beliefs and constitutional philosophy. We begin by examining the background of the Constitution's "advice and consent" phraseology and consider early applications of the confirmation process by senators during the eighteenth and nineteenth centuries. We then discuss the struggle for judicial selection power between the Senate and the President and conclude by suggesting the need for an active Senate response to executive nominations.

I. Introduction

A. The Issue

Amid rumors that at least two Supreme Court justices, Chief Justice William H. Rehnquist and Associate Justice Sandra Day O'Connor, may be retiring soon, President Bush faces the possibility of a contentious confirmation battle in trying to fill such vacancies on the Court.1 Indeed, with regard to potential Bush appointments to the Court, Robert Bork commented, "Both sides are set for a pitched battle, and it could be a replay of my experience."2 While appointing a new justice to the Supreme Court gives the President an opportunity to create a lasting political and legal legacy, such opportunities come with considerable political risks in that presidents may lose valuable political capital from a prolonged battle in the Senate over an ideologically controversial nominee.3

When such an appointment opportunity does present itself, questions are bound to arise concerning the appropriate role of the United States Senate in the confirmation of Supreme Court nominees under the "advice and consent" provisions of Article II of the United States Constitution. Disputes over the Senate's proper role and scope of inquiry seem to emerge whenever a nominee has faced the confirmation process, and have been a timeworn subject of legal review.4 Historically, the controversy over the confirmation issue has evinced the following two major points of view: (1) that the Senate should have a circumscribed role in the confirmation process and that proper questioning of nominees should not include inquiries regarding a nominee's policy values or constitutional philosophy;5 and conversely, (2) that the Senate should have an active role in the confirmation process and that confirmation votes may legitimately turn on a nominee's response to questions concerning his or her policy values and constitutional-philosophy.6

The debate over the appropriate scope of the confirmation process yields opinions from a wide spectrum of sources. During the confirmation proceedings of Associate Justice David H. Souter, then Senate Judiciary Chairperson Joseph Biden (D-Delaware) asserted, "We have a right to know and ... a duty to discover precisely what David Hackett Souter thinks on the great constitutional issues of our time."7 Former Chief Justice Warren Burger set forth an opposing view and questioned the propriety of asking nominees about their constitutional views, stating:

To call on a nominee for advance views as to questions that may come before the Court is really not unlike asking a potential juror how he or she

will decide a particular case that the jury has not yet heard. A trial judge would reprimand a lawyer for such conduct.8

Commentators note that both liberals and conservatives alike support the ideological inquiry of nominees by the Senate when they dislike the nominee. Similarly, both liberals and conservatives deem ideological inquiry inappropriate when the nominee has been to their liking.10 Such capricious assessments ofthe Senate's proper role are quite possibly inescapable given the fact that the executive office and at least a substantial portion of the Senate likely always will be controlled by ideologically discordant parties. Commentators, perhaps concerned over previous contentious confirmation proceedings, have offered suggestions for revising the process of selecting Supreme Court justices. Such suggestions range from proposals to institute formal reforms in the way the confirmation process is conducted" to keeping the process as it is, but fundamentally rethinking the way we assess candidates for our highest court.12

B. Defining the Senate's Role

The confirmation process has been implemented in this country for over two hundred years. Thus, it is somewhat ironic that a dispositive role for the Senate has not yet been defined. Inherent in the assessment of the Senate's