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Justices on Trial

Can Senate confirmation ever be less tortuous?

Jun 18, 2007, Vol. 12, No. 38 • By EDWARD WHELAN
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I do not mean to suggest that the typical Republican senator acts from more noble motives on judicial nominations than the typical Democrat. But I do believe that there is a significant difference in their conduct--and in the incentives that shape their conduct. In particular, many Republicans have conditioned themselves to believe that, on a high-profile matter like a Supreme Court nomination, the course that is in their self-interest--the easiest path to reelection--is to keep the nomination from becoming controversial and to support the nominee even, or rather especially, when the nomination is by a Democratic president. Republicans will use obscure procedures to obstruct lower-court nominees, but they shy from public battles. Democrats with national ambitions are driven, even at their political peril (recall Tom Daschle), to fight Republican judicial nominees tooth and nail.

Unfortunately, Wittes's dogma of moral equivalence blinds him from recognizing, much less exploring, the reasons for, this disparity.

The third basic defect in Wittes's book is that, despite his stated concern about separation of powers, he evinces little interest in examining which judicial philosophy best comports with the judicial role under our constitutional system. Maintaining his posture of neutrality, he treats as interchangeable all exercises of judicial power that strike down legislation. But the confirmation wars are rooted in competing understandings of the judicial role and in sharply conflicting views of which exercises of judicial power are legitimate. There is no process solution to these battles.

Indeed, Wittes's two specific recommendations would likely make the process worse. It may well be, as Wittes asserts, that we learn "virtually nothing" about the nominees from their live testimony. But we did learn quite a bit, during Roberts's and Alito's testimony, about the quality and integrity of their Senate attackers. Wittes's second proposal is even worse. Having devoted most of his book to documenting the poor behavior of senators, Wittes then recommends enhancing their power during the prenomination phase. But the problem with senatorial behavior is not, as Wittes would have it, that it is misfocused on the confirmation phase. It is, rather, that too few senators have both a sound understanding of what good judging is and an interest in promoting it.

Wittes's proposal, if it were adopted, might well lead to quieter confirmation processes, but it would also make it much more difficult for a president to make quality appointments. To put the point concretely: If Democrats had been in the majority during 2005, it is inconceivable that they would have put either John Roberts or Samuel Alito on their "preapproved list." Wittes's proposal, in short, would invite even more senatorial irresponsibility and gamesmanship.

In the end, the confirmation wars that Wittes decries are only a symptom of a deeper illness--not, as Wittes asserts, the mere growth of judicial power, but rather the judicial usurpation of American citizens' power of self-governance on a broad range of issues that the Constitution, fairly construed, leaves to the political processes. The long-term remedy for that illness is the appointment of justices who will restore the judicial role to its properly modest realm. That prospect requires that senators be driven to support nominees whose records indicate that they will practice judicial restraint--and to oppose vigorously those whose records indicate they won't.

Edward Whelan is president of the Ethics and Public Policy Center.