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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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First is Wittes's central thesis, his "institutional" explanation of senators' behavior. Taken seriously, an "institutional" explanation would suggest that senators, who are so notoriously jealous of their own fiefdoms, have somehow responded to the massive growth of judicial power by approaching judicial nominations with the interests of the Senate as an institution in mind. Were this so, one would expect a bipartisan Senate consensus in favor of judicial deference to federal legislation, no matter what policy interests were at stake, and an insistence that senators, far from being obligated to accept Supreme Court decision-making as binding precedent, have an independent power and duty to construe the Constitution and to challenge the Supreme Court's power grabs.

What Wittes apparently means by his "institutional" explanation is something very different, and not really institutional at all. Senators of various policy stripes, hoping to get from the courts what they want and to block what they don't, regard judicial confirmations as one of the institutional means available to them to advance their interests. Unfortunately, Wittes's "institutional" misnomer deters him from probing more deeply the incentives that shape senators' conduct--and from exploring whether those incentives apply differently to different groups of senators.

Second, beyond displaying the virtue of evenhandedness, Wittes appears to suffer from a rare dogmatism of moral equivalence. Most starkly, at the end of a long litany of liberal misdeeds towards conservative nominees, Wittes suddenly declares that the "moral equivalence [between liberal and conservative opposition to judicial nominations] is exact." This dogmatism, which manifests itself repeatedly, prevents Wittes from examining seriously the two pieces of evidence that directly challenge his picture of a bipartisan degradation in the process: the Senate's confirmations of the only two Democratic nominees to the Supreme Court since Richard Nixon became president in 1969, Ruth Bader Ginsburg (confirmed by a 96-3 vote in 1993) and Stephen Breyer (87-9 in 1994).

Why did leading Republicans rush to embrace Ginsburg and Breyer, even before reviewing their records? Why were those confirmation hearings such tame and courteous affairs with, to take but one of endless examples, Senator Strom Thurmond assuring Ginsburg early on that "you don't have to answer to any [questions] if you feel that you shouldn't"? Why was the Republican vote overwhelmingly in favor of these two nominees?

Wittes's only answer, made in passing, is that the "opposition party" will not fight if it "deems the nominee as close to its views as it can hope for from the administration--as happened with Ruth Bader Ginsburg and Stephen Breyer." But this answer is deeply unsatisfactory. How, for starters, was John Roberts further from what Democrats could reasonably hope for than Stephen Breyer was from what Republicans could hope for? How was the superbly qualified Samuel Alito more conservative than the former ACLU activist and feminist Ginsburg was liberal? Yet Roberts was viciously attacked by Senate Democrats and the left as hostile to civil rights, as condoning violence outside abortion clinics, and as a "Neanderthal."

Further, as Wittes nicely points out, the 22 votes against him exceeded the combined total for all the then-sitting justices other than Justice Clarence Thomas and would have been much higher if Senator Patrick Leahy and other Democrats had not made the tactical decision to preserve their ammunition for the next nominee. And Alito faced a vitriolic hearing, an unprecedented partisan filibuster effort, and 42 votes against his confirmation.

The difference, others contend, is that President Clinton consulted with leading Republicans like Senator Orrin Hatch and received their clearance on Ginsburg and Breyer. The factual predicate is accurate, but the explanation is largely question-begging. Hatch (for whom I then worked) openly invoked the principle that Clinton was entitled to considerable deference on his Supreme Court nominees, and he never drew a jurisprudential line in the sand. He objected to candidates like Bruce Babbitt and Mario Cuomo on the ground that their prominent political profiles, and the enemies that they had earned over the years, would make it difficult for him and other Republicans to support them. He was, in short, eager to help Clinton avoid a fight.

By contrast, can anyone imagine any serious proponent of judicial restraint who would receive preclearance from Patrick Leahy, Edward Kennedy, and Charles Schumer?