Take Obstructionism out of the Judicial Nominations Confirmation Process
Walpin, Gerald, Texas Review of Law & Politics
The judicial nomination process was not always a study in political obstructionism. For much of this country's history, judges nominated by the President were confirmed based on their experience, qualifications, and integrity, rather than on their political stance and ideology. Unfortunately, that is not true today; qualifications now play second fiddle to political unilateralism and obeisance to ideological litmus tests on issues such as abortion, affirmative action, or the death penalty (which are vetted by a divided Senate, generally voting along partisan lines). Indeed, the degree of shameless obstructionism extant in the judicial confirmation process has recently reached new heights, with Senators now repeatedly filibustering qualified judicial nominees to prevent a confirmation vote when the nominee appears to have the majority of votes needed for confirmation. Whether viewed on a constitutional, institutional, or historical basis, this injection of politics, ideology, and the indulgent use of the filibuster and other obstructionist techniques is insupportable. The Constitution gave to the President the sole responsibility of nominating persons for the Bench; there is no indication in the record of deliberations leading up to the adoption of the Constitution that our Founding Fathers intended the phrase "by and with the advice and consent of the Senate" to open the door to political litmus tests for judicial nominees.1
Unfortunately, the political circus surrounding judicial nominees appears to be expanding, not receding. This year, Senate Democrats have continued to employ the filibuster with wild abandon, obstructing four judicial nominations of President Bush, labeling the nominees "conservative extremists," "right-wing ideologues," and generally "unqualified," despite the "well-qualified" rating that each nominee received from a unanimous American Bar Association.2 This should not be the case. Instead, Democrat and Republican Senators alike should confirm the President's nominees so long as they have the qualifications and integrity to serve on the Bench; neither politics nor ideological biases should act as the determining factor in the nomination process. Furthermore, for historical and practical reasons, obstructionist tools such as the filibuster, the "hold," and the blue slip should not prevail against Senatorial traditions of institutional courtesy, political accommodation, and restraint. Finally, the political view-vetting now practiced by individual Senators does not necessarily insure that the nominee, after confirmation, will decide cases as "expected," since expectations of the judicial nominee's loyalty to the ideology of the president who appointed him have often proven false.
II. THE PRESCRIBED NOMINATION PROCESS
All judicial nominations are made by the President and then referred to the Senate Judiciary Committee for hearings. Once the Committee hears the nominee and any other witnesses the committee deems relevant, the Committee makes a recommendation to the Senate to confirm or reject the nominee. After receiving the recommendation, the Senate schedules a debate, to be followed by a vote on the nomination. A majority in favor is needed to confirm a nominee. These practices have not always been nor need they always be a constant. Nominations were not referred to a Senate committee until 1868. Moreover, judicial nominations need not go to committee at all. Senate Rule XXXI, which codifies the procedure for reviewing nominees, states: "When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination.'"4 Thus a nomination could be placed directly on the Senate calendar, although that has not been the practice. Generally, the problem is not in the committee but in the Senate as a whole, where one or more senators have the power to derail a nominee. …