The Supreme Court Confirmation Argument, and Limits

February 3, 2017
posted by Bob Bauer

Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.

Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades. Elections must have consequences, as the saying goes, but it useful to retain some common sense grip on how far the point has to be taken. Each opposition party will be hard-pressed to accept that, with its generously provided “consent,”  a president can strive to recast the constitutional law of the land for the next generation and beyond. Acceptance may be harder if the opposition is smarting from a “stolen seat,” or if it is concerned that a nominee is too much of an ideologue, or if the Court’s balance will be immediately “tilted,” but it is enough that the appointment is for a lifetime.

It’s conceivable that there is someone somewhere available for nomination who both parties would believe to be reliably moderate in his or her views–a difference-splitter whose decisions would please progressives one day and conservatives the next. But neither party will most of the time be inclined to take the chance. The moderate today could turn out tomorrow to have preferences that run more consistently in one direction. It cannot be known for that matter whether in a decade or more the nominee’s jurisprudential disposition will shift or undergo major transformation.

To imagine that moderation suffices as a standard is also to ignore the probability that a president has campaigned on a promise to nominate a candidate with dependable jurisprudential or ideological commitments. The very reason that he or she is moved to make such a promise returns the argument to the fundamental issue: voters perceive that the Court has an outsized role in the resolution of major and highly contested issues–that it is activist on issues they care deeply about, whether or not the activism is inspired by originalism or belief in a living constitution. A president, but also political opponents, will balk at urging supporters to have faith in a nominee identified as moderate and just hope it turns out all right. There is no chance of persuading them to take Alexander Hamilton’s stated view of the Court’s “comparative weakness,” or to share in his confidence that impeachment would be available to correct a mistake.

An answer, or part of one, is term limits. The leading proposal would set an 18-year limit on a Justice’s term. Once these limits take full effect in time, each president would have the opportunity to nominate someone to the Court.   The institution of these limits would not eliminate partisan conflicts in the nominating process, but it would help keep them from becoming epic confrontations. The fight is different if it is about a term less than 20 years, and not about “life tenure.” With limits, presidential and congressional candidates might feel less pressure to make extravagant campaign commitments about their nominees. It could not harm the Court to have the benefit of a regularly refreshed membership and a keener sense of “limits” in more than one meaning of the word.

But so far this proposal has lacked widespread support or movement toward serious consideration. What we have then is a cycle of confirmation battles that routinely skirt the real issue and drive the disagreement toward self-serving claims about process, red-hot rhetoric and questionable factual assertions. It would be fairer and clearer to the public if it could be acknowledged that each Senator will feel it necessary to vote his or her convictions or conscience or the strong wishes of constituents for or against any nominee who will serve in this powerful position, shaping the course of constitutional interpretation and determining the content of rights, for three or four decades–or more.

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