To Confirm or Not To Confirm?
If you were a United States senator, would you vote to confirm Samuel A. Alito, Jr. to be a justice of the Supreme Court? There are really two questions: First, what type of justice will he be? Second, what is the proper role of the Senate?
With respect to the first question, the president touts Judge Alito as a “strict constructionist” who is in favor of “judicial restraint” and will “interpret rather than make the law.” This sounds good. But these are empty phrases in the context of contemporary debates about judicial philosophy. The terms “strict construction” and “interpret rather than make the law” are political slogans without substantive content. What does it mean to “strictly construe” the First Amendment, which provides that Congress “shall make no law abridging the freedom of speech,” or the Due Process Clause, which provides that “no person may be deprived of law, liberty, or property without due process of law”?
The phrase “judicial restraint,” on the other hand, does have meaning. A justice who exercises judicial restraint treats the Court’s power to hold a law unconstitutional as an act of last resort. Only if there is no rational argument for a law’s constitutionality does a justice who practices judicial restraint invalidate the law. Such a view is intellectually coherent, but it has nothing to do with contemporary judicial conservatism.
Consider the positions of Chief Justice William Rehnquist, perhaps the best example of a modern judicial conservative. Rehnquist maintained that there is no constitutional right to abortion, no First Amendment protection of the journalist-source privilege, no constitutional prohibition of government-funded vouchers to support private religious education, and no constitutional right to prevent the government from examining your bank records. All these positions can readily be seen as examples of judicial restraint.
On the other hand, Rehnquist also maintained that affirmative action campaign finance regulation, restrictions on commercial advertising, public takings of private property even with just compensation, government decisions not to fund religious expression, and certain federal laws regulating firearms are all unconstitutional. By no stretch of language or logic can such positions be characterized as “judicial restraint,” to say nothing of “strict construction” or “interpreting rather than making law.”
This is not to say that Rehnquist was “wrong.” There is ample room for legitimate disagreement about the meaning of the Constitution, and the views of both Chief Justice Rehnquist and Justice Ruth Bader Ginsburg, who disagreed with Rehnquist on all of these issues, can fairly be encompassed within the scope of reasonable constitutional interpretation. Justices inevitably bring their own institutional perspectives, personal values, and judicial philosophies to the task of construing the “majestic generalities” of the Constitution, and there is simply no way around that.
It would appear that Samuel Alito is a rough approximation of William Rehnquist in terms of his perspectives, values, philosophy, and probable judicial approach. (The administration argues that Alito is even more extreme than Rehnquist – that he is more like the justices the president “most admires” – Scalia and Thomas.). Whether that is good, bad, or indifferent depends on what you expect of a Supreme Court justice. For me, it is bad. In my judgment, the primary responsibility of the Supreme Court is to protect the relatively powerless in our society against the inherent dangers of the democratic process and to protect the process itself against the most powerful elements in our society when they attempt to manipulate the system for their own partisan or personal advantage. On my view, Rehnquist was not a “good” justice. Too often, he used his authority to promote the interests of corporations, the wealthy, mainstream religions, and law enforcement, and disregarded the interests of minorities, women, political dissenters, the press, and the disfranchised. What does this tell you about whether, as a senator, you should vote against Alito’s confirmation?
This brings me to my second question: What is the proper role of the Senate? There are some reasons for which senators clearly should deny confirmation. If a nominee is unqualified, embraces a constitutional approach that is out of the “mainstream” of serious legal thought, or is closed-minded in his thinking, confirmation should be denied. So far as I can tell, Judge Alito does not fall into any of these categories.
That leaves the hard question. What if you disagree with the nominee’s views or believe that his confirmation will throw the Court seriously out of kilter? Presidents routinely assert that the Framers gave them the power to appoint justices and that the Senate should therefore defer to them in the absence of extraordinary circumstances. But that isn’t our history. At the Constitutional Convention, the Framers clearly intended the Senate to play an active role in giving its Advice and Consent to judicial nominations. Indeed, until the very last day of the Convention, the Framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive could exercise undue authority if granted carte blanche authority to appoint federal judges, who would then serve for life. It was only on the final day of the Convention that the Framers decided that it would be unwieldy for a multi-member body to make nominations and reluctantly assigned the responsibility of nomination to the president.
That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington’s nomination of John Rutledge as Chief Justice of the Supreme Court was rejected by the Senate because of opposition to his stance on the Jay Treaty, and during the 19th century the Senate refused to confirm 25% of all Supreme Court nominations. There is nothing at all new about confirmation battles.
In most circumstances, if the president nominates a qualified individual with “mainstream” views, it is reasonable for senators to give the president the benefit of the doubt to enable the process to run smoothly. But if a senator strongly disagrees with the perspective and philosophy of the nominee, the president has had multiple nominees and has consistently nominated justices with a distinctive point of view, and the senator is genuinely concerned about how a succession of such nominees will affect the Court as an institution, then it is perfectly appropriate and consistent with historical practice for the senator to oppose confirmation.
As a senator, would you vote to confirm?