The Rise and Fall of Advise and Consent

My perspective on these questions comes from participating in the judicial confirmation process not only for a long time, but under a variety of political circumstances. When I began my Senate service in 1977, Democrat Jimmy Carter was in the White House and the Senate had only 38 Republicans, the fewest since a decade earlier and fewer than at any time since. Today, Republican George W. Bush is in theWhite House and the Senate has 55 Republicans, the most since the 1920s. On the Judiciary Committee, I have served as chairman and ranking minority member, and today I am ranking majority member.

During these past three decades, the Senate has decided whether to confirm nearly 1500 nominees to Article III courts, including 10 nominees to the Supreme Court, and has voted to reject only two of them. That general description, however, should not mask the significant changes in the judicial confirmation process or the precarious state in which it exists today. While their reasons might differ from mine, the Washington Post and New York Times correctly editorialized in 2003 that the judicial selection process is “steadily degrading” and “has broken down.”

What has become of that system can be described in a number of different ways. In 1979, the Senate confirmed 135 judicial nominees, the highest total for any year in American history and more than three times the annual average over the past 50 years. Even though Jimmy Carter remains the only full-term president not to appoint a Supreme Court Justice, he appointed more lower court judges in a single term than any other president.

Compare that to the situation today. In the last three years, the Senate has not yet confirmed as many judicial nominees as in 1979 alone. It takes nearly 45 percent longer to confirm President Bush’s appeals court nominees than his predecessor’s. The percentage of President Bush’s judicial nominees receiving negative votes on the Senate floor is more than five times President Carter’s level, and seven of the 10 narrowest judicial confirmations since 1950 occurred on Bush nominees.

Traditionally, the Senate confirmed non-controversial nominees by unanimous consent or a voice vote, reserving the more time-consuming roll-call vote for nominees with some opposition. Fewer than 2 percent of President Carter’s judicial nominees were confirmed through a roll-call vote, and none was unanimous. Even this tradition, however, seems to have fallen by the political wayside. Nearly two-thirds of President Bush’s judicial nominees have had roll-call votes, even though more than 85 percent had no opposition.

A different way of illustrating the change in the judicial confirmation process involves comparing treatment of comparable nominees. In 1980, President Carter nominated then-Judiciary Committee chief counsel Stephen Breyer to the U.S. Court of Appeals for the First Circuit. He was serving under Judiciary Committee Chairman Ted Kennedy and, while he had been a law school professor, had no judicial experience. President Carter made the nomination on November 13, 1980, nine days after losing his bid for re-election and Democrats lost control of the Senate. The Senate confirmed the Breyer nomination anyway, less than a month after his nomination.

Move forward to May 9, 2001, when President George W. Bush nominated former Judiciary Committee chief counsel Dennis Shedd to the U.S. Court of Appeals for the Fourth Circuit. He had served under Judiciary Committee Chairman Strom Thurmond and, at the time of his appeals court nomination, had been a U.S. District Judge for more than a decade. The Senate had confirmed Judge Shedd in October 1990 fewer than 10 days after his nomination. Even though Judge Shedd received a higher rating from the American Bar Association for his appeals court nomination than Breyer had, it took more than 14 months to get his appeals court nomination through the Senate. The final confirmation vote for Judge Shedd was 55–44, one of the narrowest confirmations in more than 50 years.

Beyond such statistical or anecdotal measures, the profound change in the judicial confirmation process is also reflected procedurally by introduction of the filibuster. By a filibuster, I mean preventing a final vote by blocking attempts to end debate. I have recently analyzed the judicial filibuster’s cause and cure in the Utah Law Review and will offer just a few observations here. No matter what impression Jimmy Stewart may have left in the film “Mr. Smith Goes to Washington,” the filibuster was not part of the Senate’s original design.

America’s founders considered majority rule to be the fundamental maxim or rule of our form of government and designed both houses of Congress with that principle in mind. The original Senate rules did not permit filibusters, but allowed a simple majority of Senators to end debate and to vote by calling the previous question. Dropping, but not replacing, the previous question rule in 1806 meant that, because unanimous consent was required for Senate action, a single Senator’s objection could stop the Senate in its tracks. The filibuster was born not by design but by default. The filibuster became entrenched as part of the Senate’s legislative process, becoming so disruptive that efforts to reform or eliminate it began nearly a century ago. But the filibuster was always confined to legislation, over which the legislative branch has complete control and may determine its own rules.

The Senate did not take a cloture vote on a judicial nomination until 1968, when an attempt to end debate on the nomination of Abe Fortas to be Supreme Court Chief Justice failed. This step ensured that every Senator had sufficient opportunity to express his views, but did not itself defeat the Fortas nomination. The cloture vote confirmed that Fortas did not have enough votes for final confirmation, and President Lyndon Johnson quickly withdrew the nomination.

The truth is that the filibuster did not become a tool for defeating majority-supported judicial nominees until 2003. For the first time in American history, a tool that had been used to regulate the relationship between minority and majority within one branch was now being used to regulate the relationship between different branches. As a result, crossing the line from legislation to judicial nominations not only changed Senate history but raised significant constitutional issues as well.

Most importantly, the Constitution gives authority to nominate and appoint judges to the president, not to the Senate. The Senate’s role is as a check on the president’s power, not a substitute for it. The Senate exercises its role through voting on nominations that have proceeded through the evaluation process and reached the Senate floor. When used to defeat a judicial nominee who would otherwise be confirmed, the filibuster prevents the Senate from exercising its constitutional role, preventing the president from exercising his constitutional authority.

At this point, let me put my own voting record on the table. I have voted against confirmation of just five judicial nominees, and have never voted to filibuster a judicial nominee. During the Clinton years, when I chaired the Judiciary Committee, I called judicial filibusters a “travesty” in Senate floor speeches and urged my colleagues not to use this tactic. Similarly, when opposing the filibuster against appeals court nominee Miguel Estrada in 2003, I said that judicial filibusters are unfair to nominees, unfair to the American people, and “unfair to the majority of the Members of the Senate who stand prepared to vote on [the] nomination.”

The judicial confirmation process, then, has changed dramatically and, in both substance and procedure, is today particularly confrontational, partisan, and divisive. While many factors may have contributed, in varying degrees, to this transformation, I believe it is primarily driven by a shift in focus away from fundamental principles such as the separation of powers and toward political objectives such as obtaining desirable results. Advocates of a more politicized judicial role contribute to a more politicized judicial selection process.

Any hiring process begins with a job description. America’s founders outlined a modest judicial job description, limited to applying in actual cases and controversies law made by the people and their elected representatives. In this view, the law’s words already have meaning when judges use them to decide cases. Changing the meaning of the law changes the law, a power judges do not possess. If they did, as Thomas Jefferson warned, the Constitution would be rendered “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Judges cannot be controlled by law they have the power to define.

When former Chief Justice Charles Evans Hughes famously said that “the Constitution is what the judges say it is,” however, he was describing a very different judicial job description. A few decades later, Justice Geoge Sutherland, one of my predecessors as U.S. Senator from Utah, warned that in such an immodest view of judicial power, judges would go beyond interpretation and engage in “amendment in the guise of interpretation.” The law would dissolve from “inescapable and enduring mandates” into mere “moral reflections.” Sadly, by 1953, Justice Robert Jackson described the “widely held belief” that judges decide cases by “personal impressions” rather than “impersonal rules of law.”

The modest view of judicial power focuses on the judicial process and on what judges may do. The activist view of judicial power focuses on judicial results and on what judges can do. The judicial selection process has become more confrontational and politicized because participants in that process want to use it to defeat modest judges and appoint activist ones.

Judiciary Committee hearings for high-profile judicial nominees in recent years have given a voice to the change I am describing here. The questions Senators ask reflect which view of judicial power, modest or activist, they have in mind. Some Senators criticize nominees who are already sitting judges for ruling “too often” for certain parties in certain kinds of cases. Other Senators ask about a nominee’s personal opinions or values, something that is a judicial job qualification only if judges make decisions based on those personal views. During Chief Justice John Roberts’ hearing, one Senator asked him “whose side” he would be on in various match-ups between, for example, big corporations and the “little guy” or civil rights plaintiffs and defendants. Each of these lines of questioning reflects an activist view of judicial power.

The clash over judicial selection is really a clash over judicial power. It is between those advocating judicial modesty and those advocating judicial activism. Each of these very different job descriptions leads to a very different hiring process—different questions, different standards, different criteria, and different conclusions. And it is not surprising that those who seek to abandon the traditional view of judicial power would also abandon the traditional judicial selection process by asserting, even by means such as the filibuster, a more aggressive role for the Senate.

Is there a solution to this crisis? At a general level, all of us must do more to educate our fellow citizens about the fundamental principles on which our system of government is built. A Zogby poll released in August 2006 found that while 74 percent of Americans can name the Three Stooges, only 42 percent can name the three branches of government. Those who cannot name the branches are unlikely to understand what those branches are supposed to do.

Nearly all Americans say that a detailed knowledge of the Constitution is essential, but only about a quarter of them actually have such knowledge. More than 20 percent of Americans believe the First Amendment protects the right to own a pet. In that same 2006 Zogby poll, only 12 percent could not name any of Snow White’s seven dwarves but more than 60 percent could not name any of the nine Supreme Court justices.

More specifically, Senators must more openly debate the real issue in judicial selection, namely, the kind of judge America needs on the bench. What are the implications for self-government of judges restrained by the law versus judges who can define the law?  What difference does it make if judges decide cases by personal impressions and moral reflections rather than impersonal rules of law and enduring mandates?

I continue to believe that judicial filibusters should be prohibited by changing either Senate rules or parliamentary procedures. When limited to the legislative arena, the filibuster may be annoying or inconvenient, but does not disturb our basic constitutional design. When used in the judicial selection process, however, it changes the constitutional rules of the game in order to determine the political outcome of the game.

In the past 30 years, I have seen this most important duty of Senators become much more difficult because the kind of judge being sought is defined more by desirable political results than by fundamental constitutional principles. That development is dangerous for self-government and the rule of law and, therefore, to liberty itself. We must again embrace the principle that judges should stick to interpreting the law, and leave the politics to the people and those of us the people elect to represent them.