The Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law, and
Visiting Professor of Law, Fall, 2001, George Mason University School of Law

SUBMITTED TO THE SUBCOMMITTEE
ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
OF THE COMMITTEE ON THE JUDICIARY
OF THE UNITED STATES SENATE

The Senate's Role in the Nomination and Confirmation Process: Whose Burden?

September 4, 2001

Introduction.

I thank the Subcommittee for inviting me to express my views. I am the Albert E. Jenner, Jr. Professor of Law at the University of Illinois College of Law, where I researched and taught Constitutional law and Legal Ethics for over a quarter of a century. This fall, I am Visiting Professor of Law at George Mason University School of Law.

Let me begin by making several points on which I will elaborate at the end of this paper.

First, if it ain't broke, don't fix it. We have today — and we have had the entire Twentieth Century — the most powerful and respected judiciary in the world. I have traveled from Cambodia to Moldova as a Constitutional advisor to newly emerging democracies. Foreign lawyers admire our legal system. Even if they do not fully understand our system,
even if the Commissars had kept them in the dark, they know that it is the system that they would like to emulate.

That sentence bears repeating because I am paraphrasing judges, lawyers, and politicians in Eastern Europe, Far East Asia, and South America. They all say that they want their judicial systems to be like our federal system. They want their judges to be like our judges. The lawyers in South America were familiar with our system, the lawyers formerly under Communist domination were not, yet they knew that it was our system that they wanted to copy. They were all more familiar with the French Civil Law system, but they wanted to copy our system, not the French.

In Moldova, for example, a member of the Supreme Constitutional Court told me that, years earlier, when he was writing his dissertation on Comparative Constitutional Law, he had to secure special permission to travel to Moscow to read the Czech Constitution, which was under lock and key at the time — although Czechoslovakia was then a Communist country, and hardly a model of Western democracy. This Moldovan Justice knew nothing about our system except that he wanted to copy it. He knew that if the Commissars were concerned with the destabilizing influence of the Czech Constitution, they were overwhelmed by the American Bill of Rights.

Our judicial system is at the top of the food chain, and that is a good reason to leave well enough alone. Given the fact that the Senate has been confirming federal judges for years, and the product is admired around the world, one wonders why we should think of changing the way the Senate confirms. There is no reason to change presumptions or change the way the confirmation process works when the present system has produced — over a period that spans several lifetimes — the best judiciary in the world. Granted, some judicial decisions are not immediately accepted. The one person, one vote decisions, fall in that category, but now they are part of the warp and woof of our Constitution. Our federal judiciary is independent by design of the framers of our Constitution. An independent judicial system means that sometimes judicial opinions will be unpopular, and we must accept that.

Second, it is common, and erroneous belief that judges rule as Democrats or as Republicans once they are on the bench. That is false. The judges are human, to be sure. They put on their robes, two legs at a time. But they act in good faith in coming to their conclusions, and they do not vote based on the election returns. They know that their ultimate judge is history, not the politics of the moment. We want fair courts — not liberal courts, not conservative courts, not moderate courts, but fair courts, and by "fair," I mean we want judges who will call them as they see them, without regard to politics.

Let us take the D.C. Circuit, for example. I have heard it said that the D.C. Circuit is one of the most partisan, and that one can predict how the case will come out when you know which judges are sitting on the three-person panel. That is the popular notion and it is wrong. A former law professor, Harry Edwards, the highly respected judge of the D.C. Circuit, studied this issue as only a scholar would. He studied the cases and the votes of the judges based on the President who appointed them. Based on the facts, Judge Edwards concluded that the judges did not act as Democratic Judges or Republican Judges but as judges. He strongly objected to "a growing perception that federal judges decide cases on political grounds . . . ." This view, he said, is not only simply wrong, and a "myth," but it tends to undermine public confidence in the judicial process."

Third, commentators, Presidents, and Senators may think that they can predict how a nominee will vote once that person is confirmed, but our historical experience should teach us to be more humble. We do not know what will be the major legal issues ten, fifteen, or even five years from now, much less what might be the "liberal" or "conservative" answer to them. We cannot predict with any accuracy. History has repeatedly taught us that lesson.

For example, the National Organization for Women recently rallied in Washington, D.C., demonstrating because of their concern that Justice O'Connor might retire soon and were concerned about her replacement. However, when President Reagan appointed her, NOW was substantially less enthused. When Justice Powell was nominated, the President of NOW testified that Powell's confirmation would mean that "justice for women will be ignored. . . ." When Justice Stevens was nominated, a different President of NOW testified that Justice Stevens has "blatant insensitivity to discrimination against women." If NOW were a baseball team, it would be batting zero.

Similarly, civil rights lawyer Henry L. Marsh III testified at the Powell confirmation hearings about Powell's "record of continued hostility to the law, his continual war on the Constitution." That is not the Justice Powell that any of us would recognize.

Presidential batting averages are equally poor, as I explain more fully below. President Roosevelt appointed both Felix Frankfurter and William O. Douglas, two Justices who were both thought liberal before they were appointed. The same President appointed both men, and once they were on the bench, they were as alike as oil and vinegar.

Fourth, it is commonly repeated that the Court has become more conservative over the years and that President Clinton did not appoint liberal judges. I do not believe that the record supports that routine assertion. Elsewhere, I have written on the difficulties of these labels, "liberal," and "conservative," and so I will resist mightily the effort to repeat myself. Let us look at a few facts.

During the last two terms on the Supreme Court — during just these last two terms — the Court invalidated a state law that intruded on the parental relationship by mandating grandparents' visitation rights. This same Court threw out state laws that interfered with federal power over international affairs, and motor vehicles. The Court upheld federal privacy laws that regulated state motor vehicle departments and placed upon them the same restrictions imposed on private parties.

There are those who complain that the present Court is too deferential to the states, although some prominent Democratic law professors say otherwise. Yet, this same Court has shown that, when it is protecting civil rights and liberties, it is willing to override both state or federal laws and regulations to meet that goal. The Court is neither liberal nor conservative as those labels are commonly used because the Justices are not politicians.

There are many other examples one can cite. Justice Scalia, which the popular culture typically portrays as conservative, voted twice to protect burning the American Flag as free speech. Justice Stevens, which the media tells us is liberal, dissented in both of those two cases.

A few months ago, this Supreme Court voted unanimously to reverse the Ohio Supreme Court and hold that a witness who denied wrongdoing still had a constitutional right to assert the privilege against self-incrimination. I do not think that this and similar decisions be explained by any facile reference to politics.

Justice Scalia recently wrote the opinion that banned warrantless searches using high-technology heat-seeking devices. By the way, Justice Stevens wrote the dissent. Some commentators cannot understand this line-up and complain that Justice Scalia is acting not true to form. Perhaps the problem is the commentators. When they cannot put a square peg in a round hole, the problem may not be the peg, but the commentators who have predicted that the square peg will be round, and are upset that their prediction is incorrect.

It is interesting that the year after Justice Scalia was appointed to the Court, Professor Larry Tribe became one of his fans:

So far I find myself more in agreement with him than with any other justice this term. His opinions show a degree of care and attention to the actual issues before the Court that is refreshing and I wish was shown by others on the Court. The clarity of his analysis so far puts him in a class by himself.

And Fifth, as a matter of judicial ethics, judges and candidates for judges may not promise to vote particular ways on particular cases. Any person who is a candidate for appointment to a judicial office "shall not" —

make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.

It is wrong for a nominee to promise to vote a certain way, to promise to vote to overrule or to not overrule a particular precedent, or promise to approach a legal problem with a particular mind set.

The Senate should not confirm anyone who should make such promises. I have talked to people who went through the vetting process under former President Bush and none of them were asked such questions. I cannot believe that President Clinton or his aides would have asked such questions, nor that such questions would be asked in the vetting process under President George W. Bush.

Senators should not vote for or against a nominee because of predictions (often wrong) of how that nominee might vote on legal questions. As Professor Larry Tribe has advised, regarding Justice Kennedy, "He's conservative on a great number of issues. I don't have any illusions he will be liberal. But he shouldn't be opposed just because of that."

I think it is permissible to ask nominees if they have made any promises — other than " the faithful and impartial performance of the duties of the office" — to the President or to any Senator. If the nominee has made such promises, then the Senate should know what they are. But I believe that neither the Senate nor the President may or should seek such promises; the Senate should not confirm someone who treats the judicial office as an elected office. If judges are no different than politicians, the people should elect them directly.

As various Democratic commentators have advised, we should not oppose judicial nominees because of our predictions of how their legal views might mature over the years, and we should not ask nominees to promise to vote a particular way on legal issues. And, as former White House Counsel Lloyd Cutler under President Carter and President Clinton, and former Representative Mickey Edwards (R., Okla.) have recommended: "the president and the Senate must not ask for, and the candidate not offer or consent to give, any pre-commitments about unresolved cases or issues that may come before them as judges."

In short, Senatorial questions to nominees ought to be guided by three standards:

• First, it is essential that the independence of the courts be preserved. This means that the business of judging cannot be treated as though it is solely outcome-based, i.e., who wins and who loses on a particular policy issue.
• Second, we want fair courts — not liberal courts, not conservative courts, not moderate courts, but fair courts, and by "fair," I mean we want judges who will call them as they see them, without regard to politics. And,
• Third, neither Senators nor the President should ask nominees about particular issues and outcomes because nominees should only promise the faithful performance of their judicial duties.

* * * * *

With that introduction, let me turn in more detail to some interesting history that may, hopefully, put the present issues in perspective.

Our Earlier Traditions.

It has only been in relatively recent times that the Senate has subjected nominees to wide-ranging confirmation hearings, yet it has always been a given that the nominees do not make promises other than the faithful performance of their judicial duties. The last three-quarters of a century has seen dramatic changes in the style and format of these hearings.

The hearing process used to be much simpler. For example, on September 4, 1922, Justice John H. Clarke resigned. On the very next day, President Warren Harding nominated George Sutherland to the Supreme Court, and the Senate confirmed later that same day. No one would expect the Senate to act so promptly today.

Until 1929, if the Senate Judiciary committee would hold confirmation hearings on the Supreme Court nominee, they would be closed. And, until relatively recent times, the nominee would never appear and testify at the confirmation hearing.

For most of our history, it was considered inappropriate for a judicial nominee to appear in person and testify. The Senate had the duty to advise and consent, but the senators should not directly question nominees about their philosophies. Typically the nominee might be staying at a hotel near the Capitol, where he could respond to questions by sending telegrams or letters to the committee, but he would not personally attend and would not be subject to direct and follow-up questioning.

Personal Appearance.

The first nominee who actually appeared in person was Harlan Fiske Stone. Calvin Coolidge nominated Stone on January 25, 1925. In accord with the custom of the time, Stone did not appear before the Senate Judiciary Committee, which approved him unanimously. But Stone had a powerful adversary, Burton K. Wheeler, Senator from Montana, and Wheeler had many friends. Wheeler was under investigation by the Justice Department, and Stone was the attorney general who had asked Wheeler to appear before a federal grand jury in Washington, D.C.

Senator Thomas Walsh, on behalf of Wheeler, persuaded the Senate to resubmit the nomination to the committee. Stone then took the unprecedented step of agreeing to appear before the committee for a narrow purpose: to answer questions about the Wheeler affair, provided that the hearing would be public. On January 28, the committee questioned Stone for nearly five hours. On February 2, in executive session, the committee again sent forward Stone's nomination, and the Senate approved 71 to 6, with Wheeler and the other Montana senator abstaining.

Interestingly, Wheeler later became good friends with Stone; Wheeler believed that someone had lied to Stone, for "that [is] the only way you can account for the handling of the case against me after he became Attorney General."

After Stone's testimony, the Senate reverted to its standard procedure of having confirmation hearings without the nominee's ever testifying. In fact, five years after Stone's appearance, when Herbert Hoover nominated Judge John Parker to the Supreme Court, the Judiciary Committee rejected a motion to allow him to appear the committee and testify! Parker had to follow the traditional procedure of answering any charges made against him in writing. The Senate rejected Parker and then approved the next nominee, Owen Roberts.

Felix Frankfurter also broke tradition and appeared before the Judiciary Committee. At first, Frankfurter followed tradition and refused to appear personally before the committee, but after a steady stream of witnesses attacked Frankfurter, his associations, his foreign birth, and his religious beliefs, the committee asked him to appear. He did so, accompanied by his lawyer, Dean Acheson.

Frankfurter began by reading a prepared statement declaring that he would not discuss or express his personal views on controversial issues that were before the Court. He responded to Sen. Patrick McCarran's questions about his patriotism by affirming his belief in "Americanism." His personal appearance was dramatic and brief. He spoke, in total, only for about 90 minutes.

John Marshall Harlan was the third nominee who appeared to testify. Since that time, which only dates to 1955, supreme court nominees have appeared and given testimony. This relatively recent tradition now has become so expected that it would be unheard of for a nominee to refuse to speak before a public session of the Senate Judiciary Committee.

Courtesy Calls.

Another new tradition has developed relatively recently. It has now become the norm for Supreme Court nominees to pay courtesy calls on selected senators. While it is true that Louis Brandeis had an informal dinner meeting with two senators who had expressed doubts on his nomination, the Brandeis meeting was like the Stone personal appearance, viewed as an aberration and not as leading to any new tradition.

Within the last few decades, the new custom for the modern nominee is to walk the corridors of the Senate buildings and meet privately with individual senators. Afterward, a senator may announce to the press that the senator has had doubts answered (or not answered) and will therefore support (or oppose) the nomination. Justice Sandra Day O'Connor, for example, made various courtesy calls reported by the press.

Some commentators have criticized this new convention. What exactly does the nominee say in private? The senators usually do not tell us but merely make conclusory statements. Perhaps that is all that was said. This practice now seems a permanent fixture.

With the advent of personal appearances before the Senate Judiciary Committee, some people think that the senators would use the hearing to glean some knowledge about the nominee's philosophy of constitutional interpretation. Some commentators believe that an often unstated purpose is to know something about how the nominee might decide a controversial issue, such as search and seizure.

Yet, in spite of all the efforts to predict how nominees will rule and in spite of the modern tools now used to try to divine how the nominee will act once confirmed, the batting averages of presidents and senators and the general public have been remarkably poor. We should not be surprised that senators have been no more successful than presidents in predicting how nominees will turn out. The same president – Franklin Roosevelt – who nominated conservative Felix Frankfurter to the Court also nominated liberal William O. Douglas. It may be easier to predict stock market tops and bottoms than to predict how nominees will rule.

The analogy between stock-market watching and Court watching is a useful one. Some money managers develop good short-term records in timing the stock market (i.e., deciding the best times to buy and sell) and predicting the various turns in the market, but it is much harder to develop a consistent long-term record. The market timer must know not only when to sell (when the market is at the top), but also when to buy.

Business school studies typically conclude that it is very difficult — if not impossible — to consistently time and beat the market over the long term. Similarly, it is extremely difficult — if not impossible — to predict with any consistency how Court nominees will turn out.

If a lot of predictions are made, some will be correct. Even a stopped clock is right twice a day. But the president and the Senate do not have the luxury of making a lot of predictions. A president may have only one or two nominations to make (Jimmy Carter had none), and a Supreme Court appointee may sit on the Court for decades. The margin of error in making predictions must be remarkably small. History has shown us that the margin of error is, in fact, quite high.

Joseph Story. Consider President James Madison's appointment of Joseph Story in 1811. Why did Madison choose Story? Madison was a member of the Democratic-Republic party. His mentor, Thomas Jefferson, had defeated the last Federalist to hold the presidency, John Adams. Story, like his father before him, and like Madison, was also a Democratic-Republican. President Madison probably expected that the strong-willed Story, already a successful lawyer, politician, and legal scholar, would serve as an intellectual counterweight to the views of Federalist Chief Justice John Marshall. Yet, once on the Court, Story often supported and expanded Marshall's views. Some contemporaries concluded that he even out-Marshalled Marshall.

Hugh Black. The difficulty in predicting a nominee's performance is also well illustrated in more modern times by FDR's appointment of Alabama senator Hugo Black. Black was generally viewed as a Roosevelt crony. Black had enthusiastically supported Roosevelt's ill-fated efforts to pack the Court. Black had even once been a member of the Ku Klux Klan. Although he had resigned a dozen years before his Supreme Court appointment, he still received an unsolicited membership card, and many people charged that his resignation was opportunistic; a leopard never changes his spots. But Black surprised his critics.

If the Senators had tried to predict how Black would rule on racial and free speech issues, they most certainly would have guessed wrong, and we would have been deprived of one of the greatest Justices in our nation's history.

Oliver Wendell Holmes. Even short-term predictions are often wrong. President Theodore Roosevelt appointed Oliver Wendell Holmes to the Court and thought he would strengthen federal power over interstate commerce. In one of the first major opinions after Holmes was appointed, the Court upheld federal power but Holmes dissented. T.R. then announced that he "could carve out of a banana a judge with more backbone than that."

Modern Nominees. Dwight Eisenhower appointed William Brennan and Earl Warren, both of whom turned out to be strong liberals. Sandra Day O'Connor was considered a right-wing ideologue. Now the news media and many commentators regard her as a leader of the moderates. O'Connor has also upset those who have disagreed with her votes to allow restrictions on the previously declared women's right to an abortion.

Some Court watchers believe that they can prophesy what a nominee will do by looking at his record. This belief may be a factor encouraging presidents to look primarily at lower-court judges when choosing appointees to the High Court. However, like generals who are always fighting the last war, past practices do not always control the future. We can look to history not for prophecy, but for conjecture.

Judicial Philosophy.

In recent times, Court watchers have also sought to focus on the judicial philosophy of the nominee. Evidence that the nominee will seek to look at the historical intention of the framers of our Constitution is strong evidence, we are told, that the nominee will be too conservative. For example, if a justice would claim that "justices are not platonic guardians appointed to wield authority according to their personal moral predilections," many commentators would see such a declaration as a code word for judicial conservatism. Yet the language just quoted came from Justice William Brennan only a few years ago, in 1985. Brennan, will go down in history as one of our most influential justices. There are those who believe that the Senators should look for code words or phrases to determine a justice's philosophy and that Justice Brennan's reference to judicial restraint — "justices are not platonic guardians" — should be the kiss of death. These people would have voted against Justice Brennan.

Finally, when we seek to predict how a nominee will vote on the Court, we should remember that predictions of what might happen later this afternoon or tomorrow morning are easier than predictions of what will happen in six months or six years.

The stock-market analogy is again instructive here. The amount of money one can make in the market is usually quite limited if one's horizon is measured in just hours or a few days. As finance studies show, buying and holding stock for the long term is more profitable than trying to guess the latest zig and zag in the market. The real question is whether one can make money over the long term, and in order to do that, one needs a long-term outlook. It is necessary to act like an investor, not like a speculator.

If we treat the Supreme Court as an investment and not as a speculation, then the president and the senators and the media as well should worry less about how a nominee might vote on any particular issue than about what they think of the nominee's personal integrity, good faith, and intellectual ability. The alternative, trying to predict how a justice will act on particular legal issues for 5 or 10 years from now is difficult, if not impossible. We do not know what the major judicial questions will be 5or 10 years from now. We would be even less successful in forecasting what the liberal or conservative answers to those questions will be.

President Bush has made several nominations already. Some people have criticized some of them as possessing the wrong ideology. I do not know how these nominees will vote on the bench in specific cases, and I doubt that they do either. It is one thing to argue as an advocate for a client and another to decide as a judge. It is one thing to write an article about a legal issue and another to decide a concrete issue with concrete parties.

This simple fact is illustrated by no less a judicial titan than Judge Henry Friendly, a great judge and prolific author. In one case, when one of the parties cited to him one of his own articles indicating how an issue should be decided, Judge Friendly decided that he disagreed with what he himself had earlier written; the genius of the common law system, as he recognized, is that judges must make the decisions in the context of concrete cases, not in the context of law review articles. Judge Friendly dissented, while the majority relied Friendly's law review article.

What I do know of President Bush's nominees is best expressed by another excellent lawyer, Walter Dellinger, who was acting solicitor general in the Clinton administration. After President Bush announced his list, Mr. Dellinger said that, "although he couldn't comment knowledgeably on all the nominees, ‘this is a very strong list in terms of professional qualifications.' In particular, he cited John Roberts, a Washington lawyer and Supreme Court practitioner, and Michael McConnell, a University of Utah law professor."

Conclusion.

As I have explained in this statement, the history of the nomination and confirmation process supports the Senate's current practice of focusing on a nominee's character and ability to follow the law rather than his or her putative political ideology and reputed view on particular politically hot topics of the day. The Senate should continue to play the constitutionally mandated role of reasoned advisor to the President, not prophet, seer, or investigative reporter.

Further, nominees should only promise the faithful performance of their judicial duties. Hence, there should be no presumption against confirmation if a nominee chooses not to answer a politically charged question, or if question requires (or appears to require) the nominee to promise to decide a legal question of particular way, or if he or she believes an answer will compromise (or will appear to compromise) a judge's ability to later make an independent law-based decision. Nominees should not be judged or punished because of the clients that they have represented.

The Twentieth Century has demonstrated that we have the best judicial system in the world, bar none. The Senate has the weighty responsibility to preserve it by not changing the ground rules as we begin the Twenty-First Century.