Supreme Court Power Play:Assessing the Appropriate Role of the Senatein the Confirmation Process (original) (raw)
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Politicizing Impartiality: Redefining the Role of the Senate in Federal Judicial Selection
Lincoln Memorial University Law Review, 2021
The judicial selection process is heavily backlogged, resulting in excessive vacant judgeships, many in geographical areas with extremely high caseloads. Thus, the federal courts are falling further behind every year in settling disputes. The Senate’s action with President Obama’s nominee to the Supreme Court after the death of Justice Antonin Scalia has only escalated the dysfunction of the judicial selection process. Coupled with the fallout surrounding the death of Justice Ginsburg and Senator McConnell’s complete refusal to honor the precedent set by him in 2016, it has become glaringly apparent that the confirmation process conducted by the Senate needs to be standardized and streamlined. In this article, we perform a Constitutional analysis of the actual textual role of the Senate in the Confirmation process and apply the historical interpretations of the Senate’s role by the drafters of the Constitution, explaining how the judicial selection process can be updated and standardized regarding both the Supreme Court and the lower federal courts without requiring a Constitutional amendment to expedite the selection and approval of nominees and improve the efficiency of the process.
Law & Social Inquiry, 2021
Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. In The Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.
Supreme Court Selection as War
50 Drake Law Review 393 410, 2002
The most popular metaphor for describing the process by which Supreme Court Justices are selected is war. The voluminous commentary on and records of Supreme Court appointments are replete with characterizations of events in different phases of the process in militaristic terms. 1 One need look no further for confirmation of the continuing pull of the metaphor than to a recent article in the New York Times on the likely dynamic in the next Supreme Court confirmation proceeding: Neil Lewis' headline reads, From Quiet Nomination to Noisy Test for Future Battles and he employs the term "battles" five times, besides the headline, to describe what to expect when the next vacancy on the Court arises. 2 It is tempting to think that, after September 11, the bellicose rhetoric about Supreme Court selection as war would dissipate. At the outset of George W. Bush's presidency, some prominent Democratic Senators, strategists, and commentators had Drake Law Review [Vol. 50 substantial deference so that he is not forced to squander on them the time and political capital he needs to wage the war effort successfully. The structure of the Constitution is plainly, however, designed to invite conflict. Anyone familiar with the Supreme Court appointments process knows just how combative, brutal, nasty, and vitriolic it can be. The structure of the Constitution pits Presidents and Senators against each other in the federal appointments process, and the framers fully expected (even hoped) conflicts would ensue from this design. Their expectation was that the checks and balances of the Constitution, including the distribution of authority on judicial appointments, were designed, in Madison's famous phrasing, so that "ambition must be made to counteract ambition. " 5 The framers viewed conflicts over appointments as inevitable and even desirable, as the branches each sought to aggrandize their respective powers at the expense of the other. The likelihood if not inevitability of friction would prevent one branch from becoming tyrannical. Yet, the structure of the Constitution invites not only conflict but also accommodation. In relatively short order, Presidents and Senators developed informal accommodations or informal arrangements to reduce the inevitability of conflict and yet preserve some realm of discretion with respect to each Supreme Court appointment. These accommodations, expectations, or arrangements are what I call norms. 6 Following the norms of the Supreme Court appointments process promises not sanctions but peaceful coexistence between the branches. My thesis is relatively simple: I suggest hostilities break out in the Supreme Court selection process when the President, Senators, and/or nominees violate some longstanding practices or expectations (some but not all of which constitute institutional norms), or the governing norms are in flux. 7 I suggest this is true
1998
In 1803, Man did not think he was powerful enoup to g!ve orders to Conand. the Pre.ident. After the elections of 1800, with the Jeffersonians in con-Con the Pl'8lidency the Federalist Court was in no ~sition to dictate to the he •. Mal'8uif realized that he could not u~Jlola the eonstitu-ttonaUty of 13 or the Judiciary Act of 1789 and directSeeretary of State 20 James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshal! believed that the Court was supreme on matters of constitutional interpretation. This conclusion is bome out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it tum.ed its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase: I think. the modem doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault. The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he pl~yed a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judicial"l'Junctioned as a yea-saying, not a negative, branch. The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it "a nuisance.' Congress responded with legislation that declared the bridges at issue to be "lawful structures," and the Court then ruled that the bridges were no longer unlawful obstructions. l In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: "whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval." 2 Settling Constitutional Issues In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability. Neal Devins and I talked about this article. We tried to recall a time when the Court ever "settled" a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompamed by revised procedures, was constitutional.