Selecting Supreme Court Justices
Michael Gerhardt: The system is not broken, but it is not working well. Even if we discount for some posturing, relations among senators from opposing parties are not good. More than one senator has told me that he believes relations between the parties have never been worse. Whether or not this is true, relations among the senators are fraught with tension and bad blood, in large part because of differences over judicial nominations. Part of the problem is that each side believes the other is at fault. I am sure neither Democrats nor Republicans would agree with my belief that the parties are probably equally to blame. Republicans point to the Senate's rejection of Robert Bork and unseemly contest over Justice Thomas's nomination as watershed events, while Democrats point to the filibuster against Abe Fortas's nomination as Chief Justice (and particularly President Nixon's involvement in getting Fortas off the Court) and the Republicans' efforts to thwart a number of President Carter's judicial nominees.
Another part of the problem is that neither side seems genuinely interested in finding a peaceful resolution of their differences. Republican senators argue that a president's judicial nominees deserve some deference and floor votes. They call upon Democrats to put the filibuster aside and give the president and his nominees their constitutional due. For Democrats, the problem is that they are uncomfortable in unilaterally disarming themselves. They have no reason to believe that Republicans would show Democratic presidents the same respect; indeed, Republicans found all sorts of ways to obstruct President Clinton's judicial nominees. And so Democrats resist making peace.
Under these circumstances, it is hard to know what could be done to inject more civility and cooperation into the process. Walter Dellinger suggests one solution to the impasse within the Senate -- that the parties ought to reach an agreement under which the president and Republican senators pick three out of four nominees to a particular circuit court of appeals, while the Democrats pick the fourth. As Walter points out, his suggestion has died "for want of a second." But it is illuminating to think about why no one has yet supported his proposition. It seems that the leaders of both political parties seek to control the ideological composition of the courts, and this explains much of the current impasse in the Senate.
Joyce Baugh: In the aftermath of the Bork controversy, a task force was convened to examine the Supreme Court appointment process. In 1988, the Twentieth Century Fund Task Force on Judicial Selection published its report, suggesting several reforms to "depoliticize" the process: (1) limit the number of participants in confirmation hearings, (2) prevent nominees from testifying at confirmation hearings, (3) prevent senators from asking nominees questions about how they would deal with specific issues (if testimony continued), and (4) base confirmation decisions solely on nominees' written records and testimony from legal experts. Other prominent legal experts offered additional proposals for reform, including having the nominees testify immediately after being nominated and delaying testimony from other groups, prohibiting interest groups from testifying at all, ending public hearings on the nominations, and doing away with confirmation hearings altogether.
Stephen Carter's The Confirmation Mess (1994) examined several high-profile nominations to federal office, including the Bork and Thomas confirmation events. Like the Twentieth Century Fund Task Force, Carter decried the current process, but he rejected that group's proposals for reform, insisting that they would be ineffective in depoliticizing the process. Carter advocated changing the vote necessary for confirmation from a simple majority to a 2/3 vote, imposing term limits for Supreme Court justices, and electing rather than appointing Supreme Court justices. Interestingly, the idea of term limits may be gaining some traction—the question of life tenure for Supreme Court justices was addressed at a conference held at Duke University Law School in April, 2005.
Each of the proposals recommended by the Twentieth Century Fund has major disadvantages. For example, if we limit testimony from interest groups, who will determine which groups will be permitted to testify and what will be the criteria for deciding this? It is doubtful that there would be widespread agreement on the rules. Similarly, public hearings have provided citizens with the appearance of a more open, transparent process, which is preferable to earlier times when the process seemed to be controlled by a few political actors. Furthermore, given the federal judiciary's increased role in deciding major issues of public policy that affect millions of people, it seems appropriate to hold hearings on their backgrounds and qualifications.
Rather than depoliticizing the judicial selection process, Stephen Carter's proposals to elect justices and to impose term limits would move us in the opposite direction. As we have learned in recent election cycles, state judicial elections have become costly, nasty affairs that resemble the elections for legislative and executive offices. Incumbent justices have been attacked (from the right and left) for their decisions in previous cases, and large sums of money have been spent on misleading advertisements that play a major role in influencing voters' choices. Is this the model that we should follow for the federal courts? Finally, it is difficult to imagine in the current climate that any Supreme Court nominee would receive a 2/3 vote for confirmation, unless he or she were in the mold of a Ginsburg or Breyer.
The current system may have "warts," but it is still the best system we have for attempting to achieve judicial independence as well as executive and legislative accountability. I don't think that the process is over politicized, but even if it were, the proposals for reform are unlikely to alleviate the perceived problems.
Elliot Slotnick: The processes that we have in place, both at the Supreme Court and lower court levels work, because judges are seated and, by and large, they are at least as good at what they do as the people we place in offices in non-judicial positions. At the Supreme Court level, appointments are so few and far between that it is difficult to make generalizations about the process working or not. Each appointment opportunity should be judged on its own merits, and we could find many who would say the process has failed because Bork was not confirmed or because Thomas was confirmed.
Beyond such case studies, I think it is somewhat easier to make generalizations about lower court federal selection. Here, the answer may still run both ways. The process is a good one because the numbers, even in a divisive setting like the one we have witnessed in the past four years, document that an overwhelming proportion of vacancies get filled and they are usually occupied by individuals whose appointments are credible and whose judicial service will be praiseworthy. While there continues to be much ado about a dozen lower court nominees whose confirmations have been obstructed or delayed by senatorial practices involving hearings, floor votes and, now, filibusters, it is hard for me to be exercised about that. Such obstruction and delay occurs for arguably sound reasons, and the tactics utilized can have costs for those who are using them. When red flags are being waved about candidates that widen the scope of public input and debate in nomination processes and require senators to take stances for which they can be held accountable, I think this is an appropriate use of the advice and consent process. In a setting where nominees are getting timely hearings, votes are being held in the Judiciary Committee, and names are being sent to the Senate floor, the process is working. If filibusters occur that derail specific candidates, that too is a valid part of senatorial consent.
The system gets off track where there is a blunting of advice and consent processes in invisible ways with "anonymous" holds placed on nominees that keep them from having Judiciary Committee hearings or, after a hearing, when the Committee simply doesn't act on a nomination. One might argue that the process went awry for some nominees during the Clinton years, who went four years without receiving Judiciary Committee hearings.
Timothy Johnson & Jason Roberts: The process of nominating and confirming judges to the federal bench is not an easy one, and the framers did not intend for it to be easy. That the process has become more contentious in recent years does not mean the system is broken. In fact, one could argue that the framers intended this particular check to be a cornerstone of the separation of powers.
The most troubling procedural aspect of the process today is "tracking the filibuster" in the Senate, which has made it much easier for the minority party to bring the confirmation process to a halt without having to shut down the entire Senate. As such, the filibusters of Bush nominees have run in the background, while Senate business goes on as usual. This tracking procedure means that the filibusters do not force compromise. Tracking helps keep meaningful debate over nominees largely out of the public eye. The public discourse is about obstruction, not the rationale for being for or against particular nominees. The most disappointing aspect of this controversy is the rampant hypocrisy in the rhetoric of both parties.
If, as Chief Justice Rehnquist has asked many times, all nominees were given an up or down vote, then the process would be more open, senators would be held more accountable, and the debate would be about judicial qualifications rather than about which senators are obstructing which judicial nominees.
Mark Moller: I'm a fan of an active judiciary, one that protects individual autonomy and political pluralism from central, majoritarian incursion. An active judiciary depends on traits that don't necessarily come naturally to lawyers -- boldness, imagination, rhetorical flair, and a propensity for risk-taking.
Yet, there's some evidence our nomination system is biased against these traits. Stephen Choi and Mitu Gulati (2005), for example, suggest the use of metrics to quantify judicial quality—including productivity (measured by opinions authored), influence (citations to a judge's opinions outside her circuit) and independence (whether a judge votes like other judges nominated by the same party). Arguably, the Choi-Gulati criteria are proxies for judges with a propensity toward vigor and independence—the characteristics that a countermajoritarian system needs. Yet, according to John Lott (2005), judges who rate highly under these measures have become rarer since the Carter administration. This suggests that the nomination system seems to favor inert, quiescent judges, who are the least likely to step outside the path set by the political branches.
One source of the problem, but by no means the only source, may be the filibuster. It is typically defended as a countermajoritarian check, and its defenders assume it produces countermajoritarian judges. I disagree. Just because a parliamentary tactic checks majorities in Congress doesn't mean that it creates incentives for coutermajoritarian decision-making in the judicial branch. Legislative and judicial decision-making are separate, and their effects on one another are at best indirect.
Here's another way to think about the filibuster. The judiciary is a multitude of voices engaged in a conversation about the law. Congress sits on the sideline. It doesn't directly participate in the conversation. Instead, it exercises a heckler's veto—that is, it can shout down some voices. The filibuster is a tactic that makes it easier for small groups within Congress to shout down voices they don't like. In aggregate, when more small groups can shout down those who don't jibe with their views, that raises the volume of Congress's "heckler's veto." Those who win out are the milquetoast voices that don't offend anyone. That's no way to promote judging against the grain.
Mary Dudziak: It's helpful to compare our judicial selection system with the systems in other countries. In civil law countries, the judiciary is commonly a long-term career. Individuals are appointed as lower court judges shortly after they complete their legal education. They then move up the ranks, so that appointment to a high court is a form of promotion. This doesn't lend itself to the sort of vision that Mark eloquently describes as a feature of an ideal justice. While judges in other nations do not always have life tenure, high court judges often serve for a single, long term of 8-12 years. A principal goal underlying selection processes and length of terms is judicial independence, particularly insulation of the judiciary from the executive and/or the party in power.
Compared to other models, the U.S. system looks pretty good. It enables the president to select independent thinkers rather than simply promote technocrats. While the degree of politicization may sometimes be unseemly, it does not fundamentally undermine judicial independence. Instead, judicial independence is a value that other nations often see in the American system. I believe it is protected not only by insulating justices from electoral politics, but also by maintaining a role for the minority party through the filibuster. That check on majoritarian politics limits the president's ability to pack the Court with justices who will support his agenda, thereby protecting the Court's independence vis-a-vis the president.
