June 16, 2005

To: Journalists
Fr: Ralph G. Neas
Re: Supreme Court Vacancies: Bush Should Choose Consensus Not Confrontation

Within the next few weeks, President George W. Bush may have the opportunity to make his first nomination or nominations to the U.S. Supreme Court, an opportunity that will be a defining moment of his presidency.

President Bush will face the choice of whether to honor the spirit of bipartisan cooperation that emerged in the Senate to avert the nuclear option – and follow the precedent set when each of his three most recent predecessors made their first Supreme Court selection – and nominate someone who will be supported by most senators in both political parties, or to heed the demands of his party’s ideologues and embroil the nation in further partisanship, controversy and division, distracting the country from other pressing issues. For the good of the country and the Supreme Court, President Bush should choose bipartisan consensus over confrontation.

The Nuclear Compromise – a Bipartisan Call for Consultation and Consensus

The Bush administration’s confrontational strategy on judicial nominations and the resulting filibusters against a handful of the most controversial nominees led the Senate to the brink of catastrophe last month, with Senate Majority Leader Bill Frist trying threatening a parliamentary power play that would break Senate rules in order to eliminate the filibuster for judicial nominations. The party’s right-wing activists loudly demanded that the filibuster be abolished in advance of a Supreme Court vacancy, in order to eliminate any need for genuine bipartisan dialogue and to neutralize any opposition to a rigidly ideological nominee. They are essentially seeking to give Republican leaders virtually unchecked power.

With public opinion and the nation’s editorial boards running overwhelmingly against elimination of the filibuster, a bipartisan group of 14 senators forged a compromise that would allow votes on some of President Bush’s most controversial appeals court nominees in return for taking the nuclear option off the table. Although the exact terms of the compromise are apparently open to interpretation even among the negotiators, those 14 senators agreed clearly and explicitly on a call for President Bush to take seriously the Constitution’s mandate for federal judges to be appointed with the advice and consent of the Senate.

“We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration,” says the written agreement. “Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.”

Indeed, the framers of the Constitution made the president and Senate constitutional partners in the appointment of federal judges, an arrangement that exemplifies the separation of powers and checks and balances that were designed to prevent abuse of power. This split appointment power helps preserve the independence of the judiciary by making it harder for the party in power to transform the courts into instruments of partisan politics.

The American public understands the importance of keeping the courts free from politics, and, particularly where the Supreme Court is concerned, they want a nominations process that involves senators from both parties and results in nominees who are confirmed with bipartisan support. In a poll conducted earlier this year by Marttila and Associates for People For the American Way, the public showed a strong preference for consensus selections to the Supreme Court. By a 66-27 majority, Americans favored the view that “because Supreme Court justices serve lifetime terms, it is important that both parties help determine who is appointed,” over the view that “because presidents are elected by the American people, they should be able to appoint Supreme Court justices who share their values, even when the other party disagrees with their choices.”

These findings were confirmed and buttressed by a May CBS News poll, which found overwhelming support (79 percent) for the principle that federal judges should be chosen in a bipartisan manner; nearly two-thirds of the public supports the principle that it should take a Senate supermajority of 60 votes to confirm Supreme Court justices; and a two-to-one plurality agree with the proposition that eliminating the filibuster on judicial nominees would do more harm than good to our system of government.