In the wake of their election victory, Republicans are spreading the idea that judicial nominations are a presidential prerogative, much like visits to Camp David, and that the role of the Senate in the process is a ministerial one. Senate majority leader Bill Frist recently attacked Democratic opposition to Bush nominees as treason: “This filibuster is nothing less than a formula for tyranny by the minority,” he said. “If this is allowed to stand, the minority will have effectively seized from the President the power to appoint judges.”
Frist’s ignorance of the Constitution is unfortunate. The Constitution does not grant the President the power to “appoint judges.” Article II says that he may nominate, but judges are appointed only with “the Advice and Consent of the Senate.” Lifetime appointments to the federal courts are the nation’s business, and both the Senate and the people are expected to play a role in them.
The Republican fatuities disguise a genuine, and dangerous, confusion about what questions may properly be asked of judicial nominees. To question a judge’s views on a woman’s right to choose–or any other specific issue the courts must deal with–opens the questioner to the charge of imposing a litmus test. That’s exaggerated, but it is true that asking about specific legal issues, or about recent or pending cases, can put a nominee in an awkward situation. The result is that judicial confirmation proceedings have come to focus much more than is healthy on alleged ethical lapses or other personal matters far from the heart of the real issue, which is the Constitution.
So I propose a parlor game that all of us–Democrats, Republicans, Independents, liberals, conservatives, moderates–can play. Let’s think of questions that both should and properly could be posed to a judicial nominee by senators who worry about the wisdom of awarding him or her a lifetime seat on the Supreme Court. Let’s think of questions that really tell us something we want to know–not the candidate’s “compelling personal story” or his or her religious faith or the possibility of ethical lapses. Let’s think of specific questions that no reasonable, sincere nominee could in good faith refuse to answer, and that are therefore most likely to lead to an actual dialogue that will educate the people about the role of the federal courts and will provide senators with actual reasons to vote for or against a nominee. Here are ten topics for questions, accompanied by some examples–a few of the hundreds that could be proposed.
1. Federal-State Relations. This Court has appointed itself the border patrol between the state and federal domains. Recent cases have suggested that Congress has only limited power to regulate matters like low-level nuclear waste or violence against women. Where is the Court’s fondness for the states coming from? Only one sitting justice, Sandra Day O’Connor, has had any experience as an elected official in state politics or government. So it would be fair to ask a nominee: Have you had any practical experience in state governments, or do you have any special knowledge of how they operate? Do you think a lack of such experience would hinder you in deciding federalism cases? If you agree, what steps will you take to remedy this lack?
2. Congressional Powers. The current Court evinces a contempt for Congress–even though only one member, Justice Stephen Breyer, has any recent experience working in or with the institution. What is your view of Congress’s role in the constitutional order? Do you believe it is the role of the Court to examine and dismiss legislative findings of fact? Is Congress the embodiment of popular sovereignty–or is the Court, not the elected legislature now, as Kenneth Starr recently suggested, “first among equals”? If the Court is paramount, how is that justified under the Constitution?