For a Normal Supreme Court Confirmation Process

Such a normal process allows the American people to learn about and assess the president's nominee and the performance of the nominator and of the advisers and consenters. That's how our democracy is supposed to work and how it has worked.
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Justice Antonin Scalia's death last month presented the occasion to select the 118th Supreme Court justice. Although President Barack Obama has pledged to nominate a successor, Senate Republican leaders have insisted since shortly after Justice Scalia's death that the president elected later this year, not Obama, should make the appointment and have refused to hold hearings on, or courtesy calls with, any Obama nominee. This unprecedented action violates long-standing principles of constitutional practice.

The Constitution assigns the president and the Senate critical roles in the process. It provides that the president shall nominate, and by and with the advice and consent of the Senate, shall appoint, judges of the Supreme Court. This division -- the president nominates and appoints, the Senate provides advice and consent -- makes clear the shared responsibility as does the Constitution's structure. Since the two political branches are playing a unique role in composing the leadership of the judiciary, a branch that can exert checks over them both, it would be anomalous if the role was not shared. Although most presidential nominees are confirmed -- approximately 90 percent since 1900 -- the Senate has defeated nominees.

The Constitution envisions a collaborative process, especially when party control of the White House and Senate is divided. Presidents Richard Nixon and Ronald Reagan were not able to appoint their preferred choices of Judges Clement Haynsworth/G. Harrold Carswell and Robert Bork but heavily Democratic senates then unanimously confirmed conservative, Republican-appointed Judges Harry Blackmun and Anthony Kennedy even though no Democratic president would have nominated either. In 1993 and 1994, Bill Clinton appointed Judges Ruth Bader Ginsburg and Stephen Breyer rather than his preferred choices because Republican senators reported they could accept those Democratic appointees.

The process works this way in presidential election years as well as during earlier parts of a president's term. The Constitution makes no distinction regarding the president and Senate's responsibilities in year four vs. earlier years. A century ago, President Woodrow Wilson nominated Louis Brandeis on January 28, 1916 and he was confirmed on June 1. When Charles Evans Hughes resigned from the Court a few days later to accept the Republican nomination to run against Wilson, the President nominated Judge John Clarke who was unanimously confirmed on July 24, 1916. There was no suggestion that the President's or Senate's responsibilities were suspended pending the election; in fact, former President (and future Chief Justice) William Howard Taft wrote Hughes that, with his resignation, the Republicans would be sacrificing a Court seat to prevent Wilson from making appointments during a second term that would further damage the Court. On six occasions during the 20th century, the Senate confirmed justices during a presidential election year; in a seventh, a justice was given a recess appointment and confirmed the following year. The same practice largely occurred during the 18th and 19th centuries except during the accidental presidency of John Tyler who alienated both parties, made controversial choices and persisted in resubmitting them after they had failed to win favor; the Senate did not confirm any of his seven nominees in 1844, thereby skewing the 19th century statistics.

Contrary to some claims, the defeat by filibuster of President Lyndon Johnson's nominations of Justice Abe Fortas and Judge Homer Thornberry to replace Chief Justice Earl Warren and Fortas respectively is not a precedent supporting the Republican position. Chief Justice Warren disclosed his desire to retire in June, 1968; Justice Scalia's death occurred in February. Warren timed his retirement for when the Senate confirmed his successor so some argued there was no vacancy; there now is a vacancy. A bipartisan group of Senate Republicans and Southern Democrats filibustered Fortas; here one party alone provides the opposition. Finally, and most importantly, the Senate held hearings and debated the nominee in 1968 and some of the opposition stemmed from Fortas's ethical problems, from the cronyism the appointments reflected, and from opposition to Court decisions. The Senate did not declare the nominations dead before they were even made!

As Chief Justice John Marshall, himself the appointee of a lame duck-defeated President who was confirmed by a lame duck Senate, taught in McCulloch v. Maryland, the Constitution should be interpreted and implemented to lead to workable government. When the Senate celebrated its bicentennial, Thomas Eagleton and Howard Baker, the two former senators given the unprecedented honor of addressing the body, spoke respectively of the importance of compromise and the role of the Senate in tempering partisan passions. Those bipartisan messages seem lost on the current Senate majority. What is unique and deeply disturbing about its position is its rejection of the Senate's responsibility to engage in deliberation, to give fair consideration to nominees and to attempt some accommodation as has occurred in the past.

Such a normal process allows the American people to learn about and assess the president's nominee and the performance of the nominator and of the advisers and consenters. That's how our democracy is supposed to work and how it has worked. There is nothing democratic or appropriate in obstructing that normal process.

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