Posted by
Dave Smith on Monday, August 03, 2009 9:12:25 PM
"... [The President]
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...Judges of the supreme Court..."
~
The United States Constitution, Article II, Section 2
Thus
does our Constitution define the process by which the President fills a
vacancy on the Supreme Court -- no definition of what "advice and
consent" actually entails, no qualifications listed for the judges
themselves, no guidelines to which the Senators should adhere, no
roadmap for the President to follow.
Over the years, the
practice evolved that senators propose to the President various judges
from the states they represent, the judges go before the Senate
Judiciary Committee for hearings and a vote, then on to the floor of
the Senate. Typically, for Supreme Court Justices, extra care has been
taken by the President, with the recent trend being appointments
currently serving on an appellate court -- someone who has already
faced Senate confirmation and passed the test. In many cases,
particularly recently, leeway has been given to the President's
preferred nominee, with little real information coming forth in the
Senate hearings, and the determination being made that while a
particular Senator might disagree philosophically with the person in
question, the nominee does at least have the requisite qualifications
and experience and therefore gets the Senator's vote.
So we come
to our current situation, with President Obama's pick of Appellate
Judge Sonia Sotomayor to fill the Supreme Court vacancy being left by
the retiring Justice David Souter. Much has been made of Judge
Sotomayor's controversial statements and opinions, particularly with
regard to race and ethnicity and equal treatment under the law.
There's plenty of information available on that topic, so there's no
need to delve into that here. Rather, what I find interesting, is how
various senators have reacted to the vote.
As mentioned above,
there is no real Constitutional guidance on the practical application
of "advice and consent". President Clinton's appointment of Ruth Bader
Ginsburg sailed through the Senate on a 96-3 vote, in spite of her
leftist ideology; President George W. Bush's appointment of Samuel
Alito's vote was the closest in a decade and a half at 58-42, with the
"nay" votes coming based nearly entirely on ideology (with Senator John
Kerry of Massachusetts attempting to deny a vote at all via
filibuster). A precedent has been set, particularly with the
(ultimately failed) nomination of Robert Bork by President Reagan in
1987: ideology is a valid reason for non-consent of a candidate for
some senators; others seem to grant the President wider latitude,
unless the nominee really makes an error or something comes up in the
candidate's past.
So should ideology be a valid criterion for
voting to send a President's nominee to the bench? Elections do have
consequences, but Senators are elected too. Partisanship seems always
to be chastised by the minority party, but we have two political
parties for a reason, and intelligent people can disagree. Because the
Constitution leaves "advice and consent" undefined, I believe it is
indeed valid to vote against a nominee based on ideology or judicial
philosophy.
Ms. Sotomayor, barring an unforeseen doozy, will
most certainly pass the Senate and become the next Associate Justice on
the Supreme Court. But, given her judicial philosophy as shown in her
rulings and (to a lesser extent) her testimony, it is both
Constitutionally justifiable and ideologically (and philosophically)
necessary for any believer in limited government individual liberty to
vote against her -- recognizing the consequences of such a vote. Let
us hope that her service is surprising to her supporters and her
critics.