Advice and Consent
"And he (The President) shall nominate, and with the advice and consent of the Senate, shall appoint......judges of the Supreme Court, and all other officers of the United States....."
Article II, Section 2, Paragraph 2, the Constitution of the United States
President Bush has nominated US Circuit Judge John G Roberts to succeed Sandra Day O'Connor on the Supreme Court, and the attention of the nation turns to the Senate, which will determine the fate of the nomination. The death of Chief Justice William Rehnquist on September 3 means that the President will also have the opportunity to make another nomination now.
The Constitution does not set any qualifications for membership on the Supreme Court, nor does it provide the Senate with any guidance on when its consent should be given and when withheld.
Although the Constitution uses the same language to refer to the Senate's perogative to provide "advice and consent" on nominations for both the Supreme Court and cabinet positions ("other officers of the United States"), the confirmation processes are conceptually different. Officers of the Executive Branch are selected to carry out the President's program, and the President should be able to choose his own team. Only rarely will the Senate deny a President his cabinet choice (1).
Federal judges, on the other hand, are supposed to provide impartial justice to the American people, not serve anyone's political agenda. Since they serve for life (or until voluntary retirement) they exercise their power long after the President who appointed them and the Senators who confirmed them are gone. Justices of the Supreme Court, whose collective judgment is not subject to appeal, and who can declare both state and federal laws unconstitutional, must therefore be subject to the most intensive scrutiny.
I would suggest that Senators evaluate a nominee for the US Supreme Court on the basis of three criteria: Character, Competence, and Fair-Mindedness. Nominees for Chief Justice should also have the additional skill of being able to forge a cogent consensus from a group of people with differing opinions.
Character
Since all potential Presidential appointees undergo a thorough FBI background check, it is not likely that anyone convicted (or even seriously suspected) of a crime would be nominated for any high office. Yet there are acts which, although legal, are signs of character flaws serious enough to disqualify a nominee from service on the Supreme Court. Here are two examples:
1. Robert Bork was nominated for Associate Justice of the Supreme Court by President Ronald Reagan. Senators recalled that Bork, as Attorney General in October, 1973, fired Watergate Special Counsel Archibald Cox on the order of President Nixon, despite Nixon's promise to Congress that he would not interfere with Cox's work. Both of Bork's immediate predecessors in his job (Elliot Richardson and William Ruckelshaus) had resigned rather than do Nixon's dirty work. The Senate rejected the Bork nomination.
2. When Clarence Thomas was nominated by President George H W Bush in 1990, Anita Hill testified that Thomas had repeatedly sexually harrassed her when she worked for him at the Deparment of Education and the Equal Opportunity Commission. Such conduct would have been illegal, as well as reprehensible, but apparently the Senate believed Thomas over Hill and confirmed him. The charges have never been corroborated.
Comptetance
An effective Supreme Court Justice is adept at analyzing and evaluating complex legal arguments and writing clear and cogent opinions about them. Most attorneys, even the most successful litigators, have little or no opportunity to demonstrate these skills. Moreover, the average US Senator has neither the time nor the expertise to peruse and evaluate the writings of a nominee. Accordingly, I would suggest that the Senate Judiciary Committee establish an advisory commitee, composed of the deans and top professors at America's best law schools, to gague the legal abilities of Supreme Court nominees.
The American Bar Association (ABA) rates nominees for federal judicial appointments, and its input is valuable. However, ABA is a professional guild, and the interests of attorneys does not always coincide with that of the general public. (2)
Fair-Mindedness
Everyone conversant with current events and issues has opinions about them, especially people knowledgeable enough to be nominated to the US Supreme Court. These opinions are frequently grounded in one's basic religious and political beliefs.
But a fair-minded nominee is one who will not let his personal opinion about the issues in a case over-rule his judgment about the relevant legal and Constitutional principles involved. For example, a Justice may believe that abortion is morally wrong, but still vote to affirm the Court's decision in Roe vs Wade (3) as Constituionally correct.
The opposite of a fair-minded judge is one committed to an ideological agenda, who would use cases brought before the Court to advance this agenda. If an examination of the writings and other public record of a nominee shows the person to be a committed ideologue, the nominee should be rejected.
Unfortunately, many Senators will apply this criterion only to those nominees whose agendas conflict with their own, never to those whose agendas they support.
What about John G Roberts?
A graduate of Harvard Law School who worked several years in the White House and Justice Department before becoming a federal judge, Roberts is highly qualified for the Supreme Court vacancy. On August 15, the ABA rated Roberts "well-qualified."
Weeks of scrutiny have revealed no character blemishes at all.
Perhaps most important, his record both in the Executive Branch and on the DC US Circuit Court of Appeals indicates a thoughtful and dispassionate approach to the law.
The campaign to reject Roberts is already turning ugly. NARAL Pro-Choice America ran a TV-ad in early August which featured scenes of bombed abortion clincs and accused the nominee of "ideology (that) leads him to excuse violence...." (4) There is no evidence that Roberts ever excused the use of violence against abortion clinics. The attempt to link the nominee to terrorists is just as dispicable today as efforts to link Michael Dukakis to criminal Willie Horton were in 1988 and those to link Democratic politicians to the Communist Party were in the 1940's and '50's. In response to widespread denunciation, NARAL has pulled the ad.
Would Roberts vote to overturn Roe if a similar case came before the Supreme Court someday? I don't know, and more important, I believe that Roberts himself doesn't know. And that is why he should be confirmed.
I only hope that President Bush will choose someone as qualified and suitable to succeed the late Chief Justice.
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(1) The nomination of former Senator John Tower for Secretary of Defense by President George HW Bush in 1989 was rejected by the Senate after testimony about several instances of Tower's drunken and sexually-harrassing behavior.
(2) For example, lawyers oppose caps on non-monetary damages in personal injury suits, even though caps can reduce insurance costs.
(3) In 1973 the US Supreme Court ruled that a Texas woman identified only as "Jane Roe" was legally entitled to get an abortion, despite a state law. The Court found that the Fourteenth Amendment to the Constitution prohibited states from invading the privacy of Americans, which included activities such as birth-control and abortion. Since 1973 the Court has affirmed Roe several times in finding various state and federal abortion-restrictions unconstitutional.
(4) The basis for the ad is a brief Roberts wrote for the previous Bush Administration about prtotests at abortion clinics, not bombings. Roberts argued that the KuKluxKlan Act did not apply to abortion protests, and the Court agreed 6-3.
Article II, Section 2, Paragraph 2, the Constitution of the United States
President Bush has nominated US Circuit Judge John G Roberts to succeed Sandra Day O'Connor on the Supreme Court, and the attention of the nation turns to the Senate, which will determine the fate of the nomination. The death of Chief Justice William Rehnquist on September 3 means that the President will also have the opportunity to make another nomination now.
The Constitution does not set any qualifications for membership on the Supreme Court, nor does it provide the Senate with any guidance on when its consent should be given and when withheld.
Although the Constitution uses the same language to refer to the Senate's perogative to provide "advice and consent" on nominations for both the Supreme Court and cabinet positions ("other officers of the United States"), the confirmation processes are conceptually different. Officers of the Executive Branch are selected to carry out the President's program, and the President should be able to choose his own team. Only rarely will the Senate deny a President his cabinet choice (1).
Federal judges, on the other hand, are supposed to provide impartial justice to the American people, not serve anyone's political agenda. Since they serve for life (or until voluntary retirement) they exercise their power long after the President who appointed them and the Senators who confirmed them are gone. Justices of the Supreme Court, whose collective judgment is not subject to appeal, and who can declare both state and federal laws unconstitutional, must therefore be subject to the most intensive scrutiny.
I would suggest that Senators evaluate a nominee for the US Supreme Court on the basis of three criteria: Character, Competence, and Fair-Mindedness. Nominees for Chief Justice should also have the additional skill of being able to forge a cogent consensus from a group of people with differing opinions.
Character
Since all potential Presidential appointees undergo a thorough FBI background check, it is not likely that anyone convicted (or even seriously suspected) of a crime would be nominated for any high office. Yet there are acts which, although legal, are signs of character flaws serious enough to disqualify a nominee from service on the Supreme Court. Here are two examples:
1. Robert Bork was nominated for Associate Justice of the Supreme Court by President Ronald Reagan. Senators recalled that Bork, as Attorney General in October, 1973, fired Watergate Special Counsel Archibald Cox on the order of President Nixon, despite Nixon's promise to Congress that he would not interfere with Cox's work. Both of Bork's immediate predecessors in his job (Elliot Richardson and William Ruckelshaus) had resigned rather than do Nixon's dirty work. The Senate rejected the Bork nomination.
2. When Clarence Thomas was nominated by President George H W Bush in 1990, Anita Hill testified that Thomas had repeatedly sexually harrassed her when she worked for him at the Deparment of Education and the Equal Opportunity Commission. Such conduct would have been illegal, as well as reprehensible, but apparently the Senate believed Thomas over Hill and confirmed him. The charges have never been corroborated.
Comptetance
An effective Supreme Court Justice is adept at analyzing and evaluating complex legal arguments and writing clear and cogent opinions about them. Most attorneys, even the most successful litigators, have little or no opportunity to demonstrate these skills. Moreover, the average US Senator has neither the time nor the expertise to peruse and evaluate the writings of a nominee. Accordingly, I would suggest that the Senate Judiciary Committee establish an advisory commitee, composed of the deans and top professors at America's best law schools, to gague the legal abilities of Supreme Court nominees.
The American Bar Association (ABA) rates nominees for federal judicial appointments, and its input is valuable. However, ABA is a professional guild, and the interests of attorneys does not always coincide with that of the general public. (2)
Fair-Mindedness
Everyone conversant with current events and issues has opinions about them, especially people knowledgeable enough to be nominated to the US Supreme Court. These opinions are frequently grounded in one's basic religious and political beliefs.
But a fair-minded nominee is one who will not let his personal opinion about the issues in a case over-rule his judgment about the relevant legal and Constitutional principles involved. For example, a Justice may believe that abortion is morally wrong, but still vote to affirm the Court's decision in Roe vs Wade (3) as Constituionally correct.
The opposite of a fair-minded judge is one committed to an ideological agenda, who would use cases brought before the Court to advance this agenda. If an examination of the writings and other public record of a nominee shows the person to be a committed ideologue, the nominee should be rejected.
Unfortunately, many Senators will apply this criterion only to those nominees whose agendas conflict with their own, never to those whose agendas they support.
What about John G Roberts?
A graduate of Harvard Law School who worked several years in the White House and Justice Department before becoming a federal judge, Roberts is highly qualified for the Supreme Court vacancy. On August 15, the ABA rated Roberts "well-qualified."
Weeks of scrutiny have revealed no character blemishes at all.
Perhaps most important, his record both in the Executive Branch and on the DC US Circuit Court of Appeals indicates a thoughtful and dispassionate approach to the law.
The campaign to reject Roberts is already turning ugly. NARAL Pro-Choice America ran a TV-ad in early August which featured scenes of bombed abortion clincs and accused the nominee of "ideology (that) leads him to excuse violence...." (4) There is no evidence that Roberts ever excused the use of violence against abortion clinics. The attempt to link the nominee to terrorists is just as dispicable today as efforts to link Michael Dukakis to criminal Willie Horton were in 1988 and those to link Democratic politicians to the Communist Party were in the 1940's and '50's. In response to widespread denunciation, NARAL has pulled the ad.
Would Roberts vote to overturn Roe if a similar case came before the Supreme Court someday? I don't know, and more important, I believe that Roberts himself doesn't know. And that is why he should be confirmed.
I only hope that President Bush will choose someone as qualified and suitable to succeed the late Chief Justice.
--------------------------------------------------------------------------------------------------
(1) The nomination of former Senator John Tower for Secretary of Defense by President George HW Bush in 1989 was rejected by the Senate after testimony about several instances of Tower's drunken and sexually-harrassing behavior.
(2) For example, lawyers oppose caps on non-monetary damages in personal injury suits, even though caps can reduce insurance costs.
(3) In 1973 the US Supreme Court ruled that a Texas woman identified only as "Jane Roe" was legally entitled to get an abortion, despite a state law. The Court found that the Fourteenth Amendment to the Constitution prohibited states from invading the privacy of Americans, which included activities such as birth-control and abortion. Since 1973 the Court has affirmed Roe several times in finding various state and federal abortion-restrictions unconstitutional.
(4) The basis for the ad is a brief Roberts wrote for the previous Bush Administration about prtotests at abortion clinics, not bombings. Roberts argued that the KuKluxKlan Act did not apply to abortion protests, and the Court agreed 6-3.
posted by Gerald S Glazer at 1:45 PM
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