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Judicial Nominations as Political Playing Cards

January 1, 2011

Gavel imageArticle II, Section 2, of the U.S. Constitution reads:

The President… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court, and all other officers of the United States…”

(Pay particular attention to the usage of the words “Advice and Consent,” for that phrase is what this entire debate revolves around.)

Article I, Section 8, of the Constitution, however, in its enumeration of powers vested in Congress, does not list any such power of reviewing or determining the suitability for service of judicial nominations.

In the 2010 Year-End Report on the Federal Judiciary written and issued by Chief Justice Roberts yesterday, Roberts writes of a growing problem in the political structure of approving judicial nominations:

Over many years, however, a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts… There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.

Similarly, President Obama, in a recent letter to Senate leadership, pressed for a quicker confirmation process of qualified judicial nominees. He expressed his discontent that nominees with “strong bipartisan support and the most distinguished records” are consistently being blocked by a minority of Senators working “systematically and irresponsibly.”

In his letter, President Obama repeatedly stresses that many of his nominees have the qualifications and prestigious careers necessary for serving the people in federal courts. He says, however, that “[i]f there is a genuine concern about the qualifications of judicial nominees, that is a debate (he) welcome(s).” But in the current state where nominees are being blocked for political purposes, Obama faults “Republican leadership (for) undermining the ability of our courts to deliver justice to those in need.”

This may all be well and good, and Obama makes a valuable point that blocking nominees for no legitimate reasons other than hopes to achieve political objectives is certainly out of line in a democracy. Certainly, our Founding Fathers intended the structure of the Constitution to separate the judicial branch from politics (ergo, the absence of “checking” judicial nominees in the Constitution’s enumerated powers of Congress).

But if the Senatorial Republican leadership is to fault for blocking qualified nominees, doesn’t Obama himself share no less blame for the manner in which he conducted himself while a senator? After all, it was he who, when speaking of the qualifications of then-Supreme Court nominee Samuel Alito, said that although he had “no doubt that Judge Alito has the qualifications necessary to serve” and that Alito was an “intelligent man and an accomplished jurist,” he could not support his nomination because he disagreed with “his understanding of the Constitution.”

If Obama is not to blame for blocking the appointment of a qualified judge and does make a legitimate point in his objection to Alito’s interpretation of the Constitution, does the Republican leadership not hold an equally valid point when they block judicial nominees? For instance, Senate Republicans repeatedly blocked law professor Goodwin Liu’s nomination from going to vote citing, among other things, that Liu’s “belief that government welfare is a constitutional right” is “troubling.”

In hopes of answering the question of whether there is validity in blocking, or voting against, judicial nominees who poorly interpret the Constitution, we must return to the three-word phrase of “Advice and Consent” that I cite from the Constitution at the beginning of this post. And when combing history for instances in which Supreme Court justices have seen their nomination blocked largely due to political reasons, one quickly realizes that, although the Founders may have envisioned a system where judicial nominees are disconnected from the political process, that has never been the case.


Image of John Tyler

John Tyler's political unpopularity in Congress led to a string of failed nominations

Take, for instance, President John Tyler’s string of unsuccessful Supreme Court nominations. Consistently ranked as having one of the poorest relationships with Congress in the history of the presidency, Tyler saw eight of his nominations blocked by the Senate, largely for political reasons. So, there are certainly a myriad of instances in history where senators, whether for good or bad, have blocked Supreme Court nominees for political reasons- then-Senator Obama, therefore, was not an outlier or acting in an illegitimate fashion when he opposed the nomination of the qualified Alito.

But the blockage, or (recently) lack thereof, of Supreme Court nominees is not the problem. As Roberts mentions in his year-end report, our judicial system is currently facing a plethora of district and circuit court vacancies, resulting in “extraordinary caseloads” for sitting judges in burdened districts. This problem comes even after 19 “non-controversial judicial nominees” were confirmed in the final days of the 111th Congress through a deal brokered by Senators Reid (D-NV) and McConnell (R-KY).

Although recent history reveals that although Democrats blocked some of President George W. Bush’s nominees, former Senator George Mitchell (D-ME) argued, in a 2005 op-ed, that despite such filibusters, the confirmation rate of Bush’s judicial nominees after his first four years was a staggering 95 percent. Obama has certainly not had similar fortune, with only 60 of his judicial nominees confirmed thus far (compared to 99 and 126 at this point in Bush’s and Clinton’s presidencies, respectively).

It is certainly within the dominion of senators to question how Supreme Court nominees interpret the Constitution, as the decisions made by these justices affect not just an individual district, but the whole nation. In this instance, the “Advice and Consent” phrase can be interpreted liberally. But when senators, for whatever reason, use district or circuit court nominees for their political purposes, there is a defect in the system. Not only do I believe that, unless if their reasoning is especially compelling, senators do not possess the constitutional power intended by our Founders to discriminate against qualified nominees just because of differences in constitutional interpretation, but granting senators with such expansive power will inevitably always lead to the troubling situation in which we find our judicial system today. In a time when caseloads are higher than ever in “nearly all major areas of the federal judiciary,” we cannot afford a shortage of judges.

Our Founders intended for the three branches of our government to be distinctly separate, with an intricate set of checks and balances between each. The only way our judiciary branch can, once again, become entirely separate from the political processes of the legislative branch is by senators not considering differences in political ideology or constitutional interpretation when voting to confirm district and circuit court nominees. Rather, senators should vote to bring to the floor, and then confirm, all nominees that are qualified by an expertise in law, nothing else. Enough of Republicans and Democrats (in past years) alike using these judgeships as political playing cards: it is time for the judicial branch to regain its independence from politics, and the Senate must immediately “find a long-term solution to this recurring problem,” as advocated by Roberts.

Photo Credits: Think Progress blog (gavel), Wikimedia Commons (Tyler portrait).

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