The Role of the Senate in Judicial Confirmations

By Kmiec, Douglas W.; Mincberg, Elliot | Texas Review of Law & Politics, Spring 2003 | Go to article overview
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The Role of the Senate in Judicial Confirmations


Kmiec, Douglas W., Mincberg, Elliot, Texas Review of Law & Politics


SPEAKER: My name is Doug Cox, and on behalf of the Federalist Society and its Federalism and Separation of Powers Practice Group, welcome to today's special event, a debate on the role of the Senate in judicial nominations.

Our formal topic is: Of Senate Default and Judicial Nominations. Does the Constitution Require the Full Senate to Act? We call it a debate, but we are going to be proceeding informally. We hope that once we've heard from our guests today, we are going to get some interesting questions from the audience, so we will be looking to you.

These days, the role of the Senate in judicial confirmations has become increasingly contentious. What little certainty we thought we had seems to be disappearing under the pressure of partisan politics. Take the role of the President. Most of us here today would agree that the Constitution grants the power to nominate judges, at least, to the President, and that the President alone has the power to nominate. He doesn't share that power with Congress or with the judiciary. After all, presidents and presidents alone have been nominating judges for 200 years.

But even today, that bedrock principle appears uncertain. Consider a recent insight offered by Senator Jeffords. Senator Jeffords is a lawyer and has spent the last twenty-seven years in Congress. The functions and duties of his office are defined in the Constitution. As a member of Congress, he is constitutionally obligated to take an oath to support the Constitution. Thus, as a matter of professionalism, as well as patriotism, the Constitution must have been his daily study for twenty-seven years. He has a very good basis to claim to be the real constitutional expert.

Senator Jeffords, with this background in mind, recently opined that he "slept better at night because he knew Senator Leahy was picking the judges." So, as he has observed from his expert perch, the functioning of the judicial nomination and confirmation process today, he perceives that the power of selecting judges belongs not to the President but to the Chairman of the Senate Judiciary Committee, and not the individual and office mentioned in the Constitution.

A good case can be made that Senator Jeffords is not exaggerating, and that Senator Leahy is indeed picking the judges. To be sure, he is subject to political constraints and may suffer a political loss now and then, but the same is true of all constitutional actors. His power to pick is also limited by the list of names that the President is good enough to provide him with.

It is not implausible today for a senator to conclude that by deciding which judges to hold hearings, by making negative votes a matter of party discipline, and by a host of other maneuvers, Senator Leahy is de facto picking the nation's judges. Senator Jeffords' insight thus is not based on constitutional abstractions but on practical realities, and perhaps he is on to something.

In many disputes involving the separation of powers, the actual conduct of the executive and legislative branches functions as a gloss on the meaning of the constitutional text. Certainly, all the dueling statistics we've seen in recent weeks as to rates of confirmation under other presidents are designed to make prior practice a touchstone for the reasonable exercise of the Senate's constitutional advice and consent power. And perhaps the practice of permitting the Chairman of the Senate Judiciary Committee to exercise the de facto veto on judicial nominations is simply the most recent gloss on the presidential nomination power.

While no doubt our guests will be able to clear all this up, we are honored to have with us today-and we are very grateful to have with us today-two very distinguished gentlemen. Our first speaker will be Douglas Kmiec, Dean of the Catholic University Law School. Dean Kmiec is one of the nation's leading experts in constitutional law, just like Senator Jeffords. Prior to coming to Catholic, he taught constitutional law at Pepperdine and Notre Dame.

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