“Advise and consent” does not mean “be silent and rubber stamp,” and no nominee is presumptively entitled to confirmation

As part of our system of checks and balances, the Constitution expressly gives the Senate a role co-equal to that of the President when it comes to judicial nominations, imposing on the Senate the obligation to “advise and consent” to judicial nominees. Were it otherwise, if the President could merely appoint federal judges without any legislative scrutiny and consent, the federal judiciary would simply become an arm of the executive, its independence destroyed. This is not what the Framers intended for the third branch of government. To the contrary, as John Adams wrote in 1776,

[t]he dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.4

If the Senate is to carry out its “advise and consent” responsibility in a meaningful way, then it cannot be a mere rubber stamp for the President’s nominees. It must scrutinize each nominee’s record carefully in light of the important criteria required for a lifetime federal judgeship and the fact that federal judges serve for life. If a nominee does not measure up, it is the Senate’s constitutional responsibility to refuse to confirm that person.

And since the Supreme Court hears so few cases each year, the United States Courts of Appeals effectively are the courts of last resort for most Americans. This makes careful Senate scrutiny of appellate court nominees all the more important.

No person nominated to be a federal judge –- one of the most powerful and influential positions in our country -- is presumptively entitled to confirmation. To the contrary, as more than 200 law professors discussed in a letter to the Senate Judiciary Committee in 2001, nominees must meet appropriate criteria for confirmation beyond the minimum expected intellectual capacity to do the job. These criteria include:

  • having “an exemplary record in the law”
  • “a commitment to protecting the rights of ordinary Americans and . . . not plac[ing] the interests of the powerful over those of individual citizens”
  • “a record of commitment to the progress made on civil rights, women’s rights and individual liberties” and “manifest[ing] a respect for the constitutional role Congress plays in promoting these rights” and
  • having “an open mind to decision-making, with an understanding of the real-world consequences of their decisions”

Given the lasting impact that federal judges have on our society, the law professors explained that “[t]he mere absence of disqualifying evidence in a nominee’s record should not constitute sufficient grounds for confirmation.” And, as they stated, “[n]o President has a mandate to secure the appointment of individuals to the bench who are hostile to the protection of civil rights, individual liberties, privacy, health and safety, or the environment.”5

A nominee’s judicial philosophy is always pertinent to his or her fitness to serve as a judge. But particularly when the President is clearly considering a nominee’s judicial philosophy and ideology in making the nomination, the Senate has that much more right and obligation to do the same in determining whether to confirm that nominee.

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