The Senate’s Co-Equal Role, Judicial Philosophy and the Timetable for a Supreme Court Nomination

To: Journalists
Fr: Ralph G. Neas, President
Re: The Senate's Co-Equal, Judicial Philosophy and the Timetable for a Supreme Court Nomination

Even before a nominee to fill retiring Justice Sandra Day O’Connor’s seat on the Supreme Court has been named, a fog of misinformation is already swirling about the Senate’s role in the confirmation process; whether it is appropriate to inquire about a nominee’s judicial philosophy; and the timing and duration of confirmation hearings yet to be scheduled.

Amid the noise and spin, it’s important to remember the lessons of history and these key principles of Supreme Court nominations and confirmations throughout our history:

• The Senate has a co-equal role with the President under the Constitution
• The Senate has frequently rejected nominees of both parties throughout history, frequently without an up or down vote
• The Senate has a duty to ask nominees about their judicial philosophies
• Senate hearings should be deliberative, illuminating and unrushed

The Senate has a co-equal role with the President, and has frequently rejected Supreme Court nominees, often without an up-or-down vote.

Under Article II, Section 2 of the Constitution, the President nominates Supreme Court justices, but must receive the “Advice and Consent of the Senate” for them to be approved. This co-equal role is crucial to our system of checks and balances, and to maintaining a fair and independent judiciary, especially when a single party controls the White House and both Houses of Congress.

The framers deliberately constructed this co-equal role for the President and the Senate in the appointment process. Most of them were still alive and able to see their handiwork in action in 1795, when the Senate rejected one of President Washington’s first nominees to the Court, John Rutledge. As Republican Senator Robert Griffin explained in 1968:

“That action in 1795 said to the President then in office and to future Presidents: ‘Don’t expect the Senate to be a rubber stamp. We have an independent and coequal responsibility in the appointing process; and we intend to exercise that responsibility as those who drafted the Constitution so clearly intended.”¹

In fact, 34 Supreme Court nominations, more than one-fifth of the total, were not approved by the Senate. Only 11 of these, less than one-third, actually received an up-or-down vote on the Senate floor. Two others were withdrawn by the President without Senate action. The rest, 21 or almost two-thirds, were effectively defeated through inaction, delay, or filibuster, without an up-or-down vote.²

Of course, attempts to filibuster nominees also fail. In the past two decades, there has been one successful filibuster of a Supreme Court nominee – Abe Fortas in 1968. There were two unsuccessful filibusters of Justice Rehnquist’s nominations, first when he was nominated to the Court, and second when he was elevated to Chief Justice.

The Senate is entitled to consider a nominee’s views or judicial philosophy, and has frequently rejected Supreme Court nominees on that basis.

Just as a President is entitled to and does consider a nominee’s views and judicial philosophy in making a nomination to the Court, so should the Senate. In fact, the first Court nominee rejected by the Senate, Rutledge, was rejected not because of his education or professional qualifications, but because of his opposition to the Jay Treaty with England. The Congressional Research Service has documented at least 13 instances where “opposition to the nominee’s views” led to rejection by the Senate. ³

Years before he joined the Court, William Rehnquist argued in a 1959 law review article⁴ that the Senate should “restore its practice of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him.” He reaffirmed that position in a 1987 speech⁵ in which he said it was appropriate for the Senate to consider a nominee’s judicial philosophy “as a way of reconciling judicial independence with majority rule.”

Many Senators have confirmed the importance of Senate review of a nominee’s views and philosophy, and the need for nominees to answer questions to provide information on that key subject. As Senate Judiciary Committee Chairman Arlen Specter wrote and recently reaffirmed:

“The Senate should resist if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting whether or not to confirm a nominee, Senators should not have to gamble or guess about candidates’ philosophies but should be able to judge on the basis of the candidate’s expressed views.” ⁶

Numerous public opinion polls have confirmed that the public understands the Senate’s role in the process, and supports thorough questioning of the nominee’s philosophy regarding key issues.

The Senate should not be rushed to judgment; ample time, at least two months for controversial nominees, should be and has been taken to prepare for hearings

In light of the crucial responsibility of confirming Supreme Court justices to lifetime appointments, it is critical that the Senate Judiciary Committee prepare for and conduct comprehensive hearings. In the past, this preparation has included such key items as careful review of the nominee’s answers to a Committee questionnaire, review and analysis of a nominee’s often voluminous opinions and writings, background investigation by Committee staff and the FBI, and an American Bar Association review of the nominee’s record, including interviews with lawyers and other colleagues.

Particularly for controversial nominees, this process has taken several months. According to an analysis by the conservative group Progress for America of Supreme Court nominations since 1980, the time between nomination and the first hearing for controversial nominees has averaged 60 days.⁷ Even in the case of Sandra Day O’Connor, confirmed 99-0, that process took 64 days. PFA has noted that in 4 of 5 cases, the nominee’s first hearing began after Labor Day.⁸ Especially since Justice O’Connor has made clear that she will continue to serve until her successor is confirmed, the Senate should not short-circuit the process and instead prepare thoroughly for the nominee’s hearings.

In fact, since 1981, when Sandra Day O’Connor was nominated, the average Supreme Court confirmation process has taken 84.5 days⁹—beginning the day of a nomination announcement and ending the day of a confirmation vote. The Senate has spent more time on contentious nominations, so that it could fully evaluate nominees’ qualifications. Robert Bork’s confirmation process, for example, lasted 114 days, and Justice Clarence Thomas’s process lasted 106. Bork’s nomination was ultimately rejected, while Thomas was confirmed, but in both cases, senators took the time necessary to become well informed prior to casting important confirmation votes.

Unfortunately though, some of the current President’s supporters on the Radical Right, as well as a number of Republican senators, have suggested that the Senate should cut short this process in the hopes that doing so would make it easier for a nominee with a radical right, judicial activist agenda – or one with little public record – to be confirmed. Denying senators and the American people adequate time to develop informed opinions will hurt the integrity of the process.

It has been eleven years since a vacancy has occurred on the Supreme Court, and the men and women of the Senate, on behalf of the American people, have a duty to thoroughly and painstakingly examine the record and views of any nominee who aspires to a lifetime position on our most powerful court. Since Justice O’Connor has graciously agreed to serve until her successor is confirmed, the Senate can and should take the time for thorough hearings.

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¹Sen. Robert Griffin, “Supreme Court of the United States,” Congressional Record, vol. 114, part 22 (Oct. 1, 1968), p.28929, quoted in CRS Report RL31948 (June 5, 2003) at 4.
²See Henry B. Hogue, Supreme Court Nominations Not Confirmed, 1789-2002 (CRS Report July 9, 2003) at 2. Of these 21, six were withdrawn by the President after filibuster or committee action. Similarly, of the 24 individual Supreme Court nominees not confirmed, 14 or nearly 60 percent, did not receive an up or down vote. See PFAWF’s “The Myth of the Constitutionally Required Up or Down Vote,” March 2005.
³Id. at 7, 7-10.
⁴Harvard Law Record, 10/8/59
⁵ [Remarks of the Chief Justice, Columbia University School of law, New York, 11/19/87, as cited in a speech by Justice Ruth Bader Ginsburg, University of Illinois Law review, 1988 U.Ill.L. Rev. 101]
⁶Arlen Specter, Passion For Truth, as cited 7/3/05 on NBC’s “Meet the Press.”
⁷See Progress For America chart, Supreme Court Nominees – Timetable (June 15, 2005). These controversial nominees included Rehnquist, Bork, Souter, and Thomas.
⁸Id.
⁹Id.