The New and Extreme Judicial Confirmation Wars

We are in the midst of seeing a lot of reaction to the Supreme Court’s jurisprudence for this term. Washington Post columnist E.J. Dionne gets in on the action by writing this column, in which Dionne puts forward some novel — and misguided — notions on how best to select a Supreme Court Justice for any vacancy that might emerge during the rest of the Bush Presidency.

Dionne argues that the Senate should refuse to confirm any nominee that the President has not cleared with “the Senate majority” in advance of the nomination. Since “the Senate majority” presumably refers to the Democratic Caucus, what Dionne essentially is proposing is that Senate Democrats should have veto power over the initial Presidential nomination, in addition to having the full Senate decide whether or not a particular nominee will be confirmed.

Dionne makes a show of saying that the “Advice and Consent” of the Senate means that the Senate gets to help the President pre-select a nominee. That’s not true, of course, and no President has ever observed such a reading of the Constitution. The Constitution’s rules concerning the confirmation of Executive nominations are quite simple and a great deal fairer and balanced than Dionne’s crabbed interpretation. The President get to nominate someone of his choosing for an Executive appointment and the Senate’s “Advice and Consent” powers come into play in deciding whether or not that nominee gets confirmed. In this way, each branch of government gets to check the power of the other.

Under Dionne’s formulation, however, checks and balances are thrown out the window. Dionne would not only allow the Senate to decide whether a nomination should be confirmed, but he would allow the Senate to help decide who the nominee will be in the first place. Curiously enough, however, Dionne never argued for this interpretation of the judicial confirmation process when Bill Clinton was President and the Senate was run by Republicans.

The catalyst for Dionne’s novel argument is that he disagrees with the direction the Roberts Court is taking. The Roberts Court is conservative, Dionne most emphatically is not and for Dionne, that’s reason enough to put forth this radical restructuring of the judicial confirmation process. Dionne is free to think whatever he wants about the proper form of jurisprudence for America’s court system. But he is not free to demand that the rules concerning judicial confirmations be changed simply because he disagrees with the philosophical stance of the people being confirmed.

Like Captain Renault in Casablanca, Dionne is shocked, shocked to find out that Chief Justice Roberts and Justice Alito are adherents of a conservative style of jurisprudence. He shouldn’t be. As the lawyer-blogger Patrick Frey reminds us, both Roberts and Alito gave fair warning concerning the nature of their jurisprudential philosophy during their confirmation hearings. From the Roberts confirmation hearings (emphasis Frey’s):

ROBERTS: I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, “Are you going to be on the side of the little guy?”

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.

The oath that a judge takes is not that, “I’ll look out for particular interests, I’ll be on the side of particular interests.” The oath is to uphold the Constitution and laws of the United States. And that’s what I would do.

And from Alito’s:

ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.

Everybody is entitled to be treated equally under the law. And I think that’s one of the greatest things about our country and about our legal system.

These statements — which confirm the adherence Chief Justice Roberts and Justice Alito have for interpreting the law instead of making the kind of outcome-driven decisions that Dionne calls for in his column — should have tipped off any reasonable observer about the jurisprudence of Chief Justice Roberts and Justice Alito. Dionne can claim all he wants that he was taken aback by the nature of the rulings handed down by the Roberts Court and formulated by the Court’s two newest members, but if he really was taken by surprise, he must not have been following the Roberts and Alito confirmation hearings very closely.

Both Chief Justice Roberts and Justice Alito went through a tremendous amount of press and governmental scrutiny as part of the confirmation process. Their finances, their ethics, their work experiences and their judicial philosophies were investigated by both the Executive and Legislative branches of government. There were any number of checks on the President’s nomination of both Chief Justice Roberts and Justice Alito. There was no shortage of people willing to step forward and debate the merits or demerits of the Roberts and Alito nominations. And at the end of the day, after an exhaustive analysis was conducted on all sides, Chief Justice Roberts and Justice Alito were both judged worth of sitting on the Court. Dionne may not like the result of the jurisprudence of the Roberts Court, but that gives him no right to imply that the system by which Chief Justice Roberts and Justice Alito were selected was somehow flawed or unfairly skewed to the right. And he certainly does not have the right to argue for a confirmation system that genuinely does skew the process unfairly based on ideological and institutional biases.

Franklin Delano Roosevelt nearly saw his Presidency unravel thanks to a misguided Court-packing plan he tried to push through Congress. E.J. Dionne has taken a page out of Roosevelt’s playbook and is pushing his own version of Court-packing. Basically, the Dionne Plan boils down to this: The President can’t nominate anyone who E.J. Dionne doesn’t like. It is a naked attempt by Dionne and his fellow partisans to subvert the Constitutional process for judicial confirmations for their own ends. And it should be rejected emphatically.