News
Judges and Judiciary
Aug. 12, 2002
Using Limitus Tests
Forum Column - By Mark Kozlowski - The battles over the Senate's consideration of President Bush's judicial nominees continue apace, and curiously forgetting the rough treatment doled out to a significant number of President Clinton's nominees by Senate Republicans, conservatives continue to argue that these battles exist only because Senate Democrats misunderstand or disregard the legitimate role of the Senate in the confirmation process.
Forum Column
By Mark Kozlowski
The battles over the Senate's consideration of President Bush's judicial nominees continue apace, and curiously forgetting the rough treatment doled out to a significant number of President Clinton's nominees by Senate Republicans, conservatives continue to argue that these battles exist only because Senate Democrats misunderstand or disregard the legitimate role of the Senate in the confirmation process.
They assert that the Senate's review of judicial nominees should not include consideration of the ideological predilections exhibited by a nominee's past behavior. But the Constitution does not include such a prohibition, and the political practice of the last 200 years shows that the Senate frequently has taken such considerations into account.
According to the arguments put forth by conservatives, the Senate should not be concerned that Texas Supreme Court Justice Priscilla Owen, a Bush nominee for the 5th U.S. Circuit Court of Appeals, appears to have been chosen largely because of her strong record of reaching anti-abortion results in her decisions.
Rather, as recently argued by Terry Eastland in the Weekly Standard, the relevant focus should be that Owen "excelled in law school and for 17 years as a commercial litigator with a top-tier firm in Houston" and that "the American Bar Association in its review of her candidacy ... unanimously deemed her 'well-qualified,' its highest rating." As for Owen's ideological leanings, it is enough that her rulings are "well within the bounds of reason."
Conservatives argue moreover that confining the Senate's review of judicial nominees to matters of professional qualifications and judicial temperament is exactly what the Framers of the Constitution wanted. Thus, professor Stephen Presser of Northwestern University School of Law declares in a recent law review article, the Framers would have rejected the notion that judicial nominees should be subject to any "ideological burden of proof" at the hands of the Senate.
History, however, is somewhat murkier than this. First, by giving the Senate a role in the process, the Framers signaled that they did not wish to leave the president with unbridled discretion in staffing the federal bench. They certainly remembered that one of the indictments of George III set forth in the Declaration of Independence was that he made colonial judges "dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries." A few years before the declaration was issued, John Adams referred to the dependency of judges on the Crown as a "horrid fragment of feudal despotism."
Moreover, John Rutledge, a delegate to the constitutional convention of 1787, argued against lodging the power of naming federal judges with the president alone because the people would construe this as a sign that "we are leaning too much toward monarchy." Thus, the view of Sen. Mitch McConnell, R-Ky., to the effect that the president "is entitled to tilt the judiciary any way he wants," is incorrect.
On the other hand, the Framers did not favor posterity with comprehensive discussions about the appropriate content of the Senate's investigations into the fitness of federal judicial nominees. James Madison declared at the constitutional convention that the Senate should serve as a guard against "any incautious or corrupt nomination by the executive." But, although the Framers tended to think of corruption as something more than mere venality, we can't say that Madison was endorsing an investigation into ideological positions.
Presser and others place considerable emphasis on Alexander Hamilton's statement in Federalist 76 that the Senate should try to weed out "unfit characters" appointed by the president, for reasons that include state prejudice, family connections, improper personal attachments and those who desire a nomination from a view to popularity. Presser and others take this to mean that the Senate should do no more than try to prevent cronyism.
But Hamilton was addressing the Senate's advise and consent role with respect to presidential appointments generally, not merely with respect to federal judges. And since Hamilton quickly adds that rejecting unfit characters would be "an efficacious source of stability in the administration," his mind was focused on executive branch appointments, not judicial ones.
Most important, nowhere in the Framers' debates does one find the assertion that, if a president seeks to fill the federal bench with ideologically compatible judges, the Senate must confine itself to considering only a nominee's professional qualifications and to ensuring that nepotism played no role in the nomination.
In fact, when government under the Constitution began to operate, ideological considerations manifested themselves immediately in the Senate's consideration of judicial nominees. The 1795 nomination of Rutledge to be the chief justice of the U.S. Supreme Court was defeated in the Senate because, shortly after his nomination, he publicly opposed a treaty recently negotiated with Great Britain. Hamilton himself denounced Rutledge in the press, asserting that he was unfit for the court because he had spoken "in a delirium of rage." After the nomination was defeated, John Adams said that Rutledge had rightly been rejected because no one should sit on the court who has propagated "[d]isunion, division, contention and delusion among the people."
Throughout our history, more than a few presidents have avowedly tried to staff the federal bench with ideological compatriots. Thomas Jefferson, who was convinced that his predecessor, John Adams, had packed the federal courts with judges of aristocratic pretensions, declared that he considered allegiance to "true republican principles" to be an occupational prerequisite for a federal judge. Closer to our own time, Franklin D. Roosevelt looked for New Deal adherence in choosing judicial nominees, and Richard Nixon announced that he would seek strict constructionists, which was short for saying that his judicial nominees would be hostile to Warren court jurisprudence. During the Reagan administration, Edwin Meese stated with admirable candor that the White House would use judicial appointments to "institutionalize the Reagan revolution so it can't be set aside no matter what happens in future presidential elections."
These attempts have been more or less successful, not because the Senate has at various times in our history disavowed any inclination to investigate the ideology of judicial nominees but because their success has depended on whether or not the Senate has shared the ideological stance of the president who was attempting to shape the federal judiciary in his image.
A single statistic tells the tale. When the White House and the Senate have been controlled by the same party, Supreme Court nominees have had an 87.9 percent success rate in winning Senate confirmation. In times of divided government, that figure drops to 54.5 percent. One need only compare the frictionless 1986 confirmation of Antonin Scalia, who was confirmed by a vote of 98-0, with the defeat of Robert Bork the following year. Scalia's record of conservative jurisprudence was hardly less pronounced than Bork's. All that had changed was that the Democrats took back the Senate in the November 1986 elections.
During the 2000 campaign, Bush announced that he would employ ideological criteria in choosing judicial nominees. He said he would seek judges in the mold of Scalia and Clarence Thomas. The conventions of our political practice make it clear that, when evaluating the president's choices, Senate Democrats should not engage in such crude endeavors as demanding to know how nominees will decide particular sorts of cases likely to come before them.
On the other hand, neither the Framers' vision nor the history of the federal judicial selection process across more than 200 years demand that they confine themselves to ensuring that a nominee got good grades in law school and has had a distinguished career in the law.
Mark Kozlowski is associate counsel at the Brennan Center for Justice at New York University School of Law and the author of "The Myth of the Imperial Judiciary: Why the Right Is Wrong About the Courts," forthcoming from New York University Press.
By Mark Kozlowski
The battles over the Senate's consideration of President Bush's judicial nominees continue apace, and curiously forgetting the rough treatment doled out to a significant number of President Clinton's nominees by Senate Republicans, conservatives continue to argue that these battles exist only because Senate Democrats misunderstand or disregard the legitimate role of the Senate in the confirmation process.
They assert that the Senate's review of judicial nominees should not include consideration of the ideological predilections exhibited by a nominee's past behavior. But the Constitution does not include such a prohibition, and the political practice of the last 200 years shows that the Senate frequently has taken such considerations into account.
According to the arguments put forth by conservatives, the Senate should not be concerned that Texas Supreme Court Justice Priscilla Owen, a Bush nominee for the 5th U.S. Circuit Court of Appeals, appears to have been chosen largely because of her strong record of reaching anti-abortion results in her decisions.
Rather, as recently argued by Terry Eastland in the Weekly Standard, the relevant focus should be that Owen "excelled in law school and for 17 years as a commercial litigator with a top-tier firm in Houston" and that "the American Bar Association in its review of her candidacy ... unanimously deemed her 'well-qualified,' its highest rating." As for Owen's ideological leanings, it is enough that her rulings are "well within the bounds of reason."
Conservatives argue moreover that confining the Senate's review of judicial nominees to matters of professional qualifications and judicial temperament is exactly what the Framers of the Constitution wanted. Thus, professor Stephen Presser of Northwestern University School of Law declares in a recent law review article, the Framers would have rejected the notion that judicial nominees should be subject to any "ideological burden of proof" at the hands of the Senate.
History, however, is somewhat murkier than this. First, by giving the Senate a role in the process, the Framers signaled that they did not wish to leave the president with unbridled discretion in staffing the federal bench. They certainly remembered that one of the indictments of George III set forth in the Declaration of Independence was that he made colonial judges "dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries." A few years before the declaration was issued, John Adams referred to the dependency of judges on the Crown as a "horrid fragment of feudal despotism."
Moreover, John Rutledge, a delegate to the constitutional convention of 1787, argued against lodging the power of naming federal judges with the president alone because the people would construe this as a sign that "we are leaning too much toward monarchy." Thus, the view of Sen. Mitch McConnell, R-Ky., to the effect that the president "is entitled to tilt the judiciary any way he wants," is incorrect.
On the other hand, the Framers did not favor posterity with comprehensive discussions about the appropriate content of the Senate's investigations into the fitness of federal judicial nominees. James Madison declared at the constitutional convention that the Senate should serve as a guard against "any incautious or corrupt nomination by the executive." But, although the Framers tended to think of corruption as something more than mere venality, we can't say that Madison was endorsing an investigation into ideological positions.
Presser and others place considerable emphasis on Alexander Hamilton's statement in Federalist 76 that the Senate should try to weed out "unfit characters" appointed by the president, for reasons that include state prejudice, family connections, improper personal attachments and those who desire a nomination from a view to popularity. Presser and others take this to mean that the Senate should do no more than try to prevent cronyism.
But Hamilton was addressing the Senate's advise and consent role with respect to presidential appointments generally, not merely with respect to federal judges. And since Hamilton quickly adds that rejecting unfit characters would be "an efficacious source of stability in the administration," his mind was focused on executive branch appointments, not judicial ones.
Most important, nowhere in the Framers' debates does one find the assertion that, if a president seeks to fill the federal bench with ideologically compatible judges, the Senate must confine itself to considering only a nominee's professional qualifications and to ensuring that nepotism played no role in the nomination.
In fact, when government under the Constitution began to operate, ideological considerations manifested themselves immediately in the Senate's consideration of judicial nominees. The 1795 nomination of Rutledge to be the chief justice of the U.S. Supreme Court was defeated in the Senate because, shortly after his nomination, he publicly opposed a treaty recently negotiated with Great Britain. Hamilton himself denounced Rutledge in the press, asserting that he was unfit for the court because he had spoken "in a delirium of rage." After the nomination was defeated, John Adams said that Rutledge had rightly been rejected because no one should sit on the court who has propagated "[d]isunion, division, contention and delusion among the people."
Throughout our history, more than a few presidents have avowedly tried to staff the federal bench with ideological compatriots. Thomas Jefferson, who was convinced that his predecessor, John Adams, had packed the federal courts with judges of aristocratic pretensions, declared that he considered allegiance to "true republican principles" to be an occupational prerequisite for a federal judge. Closer to our own time, Franklin D. Roosevelt looked for New Deal adherence in choosing judicial nominees, and Richard Nixon announced that he would seek strict constructionists, which was short for saying that his judicial nominees would be hostile to Warren court jurisprudence. During the Reagan administration, Edwin Meese stated with admirable candor that the White House would use judicial appointments to "institutionalize the Reagan revolution so it can't be set aside no matter what happens in future presidential elections."
These attempts have been more or less successful, not because the Senate has at various times in our history disavowed any inclination to investigate the ideology of judicial nominees but because their success has depended on whether or not the Senate has shared the ideological stance of the president who was attempting to shape the federal judiciary in his image.
A single statistic tells the tale. When the White House and the Senate have been controlled by the same party, Supreme Court nominees have had an 87.9 percent success rate in winning Senate confirmation. In times of divided government, that figure drops to 54.5 percent. One need only compare the frictionless 1986 confirmation of Antonin Scalia, who was confirmed by a vote of 98-0, with the defeat of Robert Bork the following year. Scalia's record of conservative jurisprudence was hardly less pronounced than Bork's. All that had changed was that the Democrats took back the Senate in the November 1986 elections.
During the 2000 campaign, Bush announced that he would employ ideological criteria in choosing judicial nominees. He said he would seek judges in the mold of Scalia and Clarence Thomas. The conventions of our political practice make it clear that, when evaluating the president's choices, Senate Democrats should not engage in such crude endeavors as demanding to know how nominees will decide particular sorts of cases likely to come before them.
On the other hand, neither the Framers' vision nor the history of the federal judicial selection process across more than 200 years demand that they confine themselves to ensuring that a nominee got good grades in law school and has had a distinguished career in the law.
Mark Kozlowski is associate counsel at the Brennan Center for Justice at New York University School of Law and the author of "The Myth of the Imperial Judiciary: Why the Right Is Wrong About the Courts," forthcoming from New York University Press.
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