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The Senate has a Choice, Not an Echo

"Deference" has no place in "advice and consent."

9:50 AM, Jul 2, 2010 • By ADAM J. WHITE
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Jack Goldsmith ranks among the very best conservative legal scholars.  He also wins acclaim from liberals, who applauded his criticism of the Bush administration's legal arguments supporting aspects of the nation's response to the attacks of 9/11, during his tenure in President Bush's Justice Department.  This week, he endears himself to the left once again, for his Senate testimony in support of Elena Kagan's bid for the Supreme Court.  Goldsmith -- whom Kagan hired to Harvard Law School upon his departure from Justice -- not only supports Kagan, but he's also managed to call the entire Senate Judiciary Committee a pack of hypocrites. 

The Senate has a Choice, Not an Echo

As CBS's Jan Crawford reports, Goldsmith's prepared testimony sharply contrasts the senators' treatment of President Bush's judicial nominees with their treatment of Kagan: in 2005 and 2006, some Republican senators argued that the Senate should defer to the president and confirm a "qualified" nominee regardless of the nominee's ideology, but today they offer no such deference.  And Senate Democrats, vice-versa.

Furthermore, according to Goldsmith, the Republicans were right in 2005 and 2006, and the Democrats are right today: "The President of the United States is entitled to choose a judicial nominee whom he believes reflects his judicial philosophy; and his decision to nominate a highly qualified individual who swims in the broad mainstream of American legal life – a description that Kagan easily satisfies – warrants deference from the Senate."

He offers no constitutional support for this theory, and in fact none exists.  The Constitution nowhere speaks of Senate deference to the president's judicial nominations.  Instead, it gives both the president and the Senate a strong hand in the process: the president may appoint a new justice, but only once the Senate gives its "advice and consent."  The Constitution provides neither the standards by which the president makes his choice, nor the standards by which the Senate accepts or rejects his choice.

As it happens, the Framers of the Constitution actually considered proposals that stacked the nomination-and-confirmation deck in the president's favor, but they rejected them.  James Madison suggested that the president's should automatically receive the appointment unless the Senate mustered enough "no" votes within a certain time limit.  William Paterson would have done Madison one better and eliminated the Senate's role entirely. 

But the Framers instead approved a process drawn from the Massachusetts state constitution, with the Senate playing the role of Massachusetts's "Privy Council," a critically important check on the post-colonial Massachusetts governor.  (I detailed the history of this constitutional provision in a 2006 article challenging President Bush's criticism of Senate during their protracted struggle over judicial nominations.)

Goldsmith's deferential standard is at odds with the Constitution's fundamental structure.  The Constitution's separation of powers does commit certain powers to the exclusive domain of certain branches, but where the Constitution creates checks and balances, the Framers intended the branches -- each elected separately, on different dates, for different terms, by separate constituencies -- to press hard against each other.  Far from deferring to the president's nomination, the Senate should investigate the nominee thoroughly, and question the nominee vigorously.  Nowhere more so than in the lifetime appointment of a Supreme Court justice.

Adam J. White is a lawyer in Washington, D.C.

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