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

Joseph Biden (D-Delaware) called for a different standard, under which a senator would consider the following: (1) does the nominee have the intellectual capacity, competence, and judicial temperament required for a Supreme Court Justice; (2) is the nominee of good moral character and free of conflicts of interest; and (3) would the nominee faithfully uphold the Constitution?78

The primary distinction between McConnell's and Biden's standards is that Biden would include a nominee's constitutional philosophy as a basis of rejection. The conflict of standards between McConnell and Biden is representative of the primary dispute between those who either do or do not believe that a nominee's substantive views are a proper basis for senator rejection. Even those who agree that a nominee's substantive views may be property considered do not agree as to what extent.

One of the major theories regarding the bounds of ideological rejection dictates that a nominee may be rejected on ideological grounds only if it is shown that the nominee's substantive views would be harmfil to the best interests of the nation.79 Although this standard provides a broad basis for rejection, including ideological opposition, Professor Ross has explained that this standard would not include rejections based on political pique or narrow substantive issues.80

A similar standard for nominee rejection is the "mainstream jurist" theory, whose advocates include Robert Bork.81 This standard basically requires that the nominee have ideological support in his substantive views and not be a "lone wolf' interpretationist.82 It is somewhat ironic that Bork would espouse this standard because the mainstream jurist theory was at least one of the

grounds upon which his rejection was based.83 During his confirmation hearings, supporters of Bork presented evidence to show, statistically, that Bork was "in the mainstream" while sitting on the D.C. Circuit Court of Appeals.84 Opponents of Bork's nomination presented letters and testimony from almost forty percent of all law professors in the United States, who opposed Bork as a nominee.85 Thus, it is evident that confirmation participants will take great measures to prove that a nominee is or is not a mainstream jurist.

The standards noted above are only a few of the many that have been advanced by commentators and confirmation participants. Professor Tribe has put forth his own unique standard which requires: (1) that the nominee adhere to the American vision of a just society; and (2) that the nominee not upset the overall balance of the Court's ideology. Professor Friedman generally opposes ideologically based rejections, but allows for an exception where a nominee's views are so repugnant that merely allowing him to voice them as a Supreme Court Justice would be dangerous.87 On the other end of the spectrum is Professor Rees, who thinks that single issue rejections are appropriate under some circumstances 88 All of these standards call for a limit to the bounds of senatorial rejection and none would allow for rejection of a nominee for purely partisan political reasons. These theories ostensibly assume that standards for rejection of nominees can be enforced effectively. Below, we suggest that these proposed standards offer no realistically effective strategy for implementing the Senate's "advice and consent" role and that a wide-open rejection standard is the most plausible solution to the appointment-confirmation dilemma.