Deference was the word used on Capitol Hill for decades regarding presidential appointments to the courts. Rarely did a presidential nomination fail, and when it did, it was for scandalous reasons. Deference began to erode in the 1980s when the process of Bork-ing began. You know Bork-ing – when the Democrat-controlled Senate defeated the nomination of Judge Robert Bork to be Associate Justice on the Supreme Court, purely for ideological reasons. From then on, Bork-ing has been a Democrat-norm in trying to defeat presidential nominations. It was true when Chief Justice Roberts was nominated in 2005, and it was true that same year when Justice Samuel Alito was elevated to the High Court. Democrats voted no en mass, and even mounted a failed filibuster against Alito, to President Bush’s nominations simply because they disagreed with the nominees for philosophical reasons; they did the same to numerous lower court nominees, including Miguel Estrada, Bill Pryor, Janice Rodgers and many more. Democrats voted no regardless of qualifications. The question begs – is this approach justified?
Clearly, the answer is no.
Nothing in the constitution allows a Senator to reject or support a nomination for political reasons. The constitution requires Senators to advise and consent to nominations, and nothing more. So, when is it constitutionally justifiable to vote no – or yes? I believe the answer lies in Article VI of the constitution, but before getting there, let’s cover Articles I, II and III.
Article I covers the powers of the House and Senate, and it really gives no guidance to Senators how to vote on nominations. Article II covers the powers of the executive, and it only provides the Senate advise and consent to nominations by the presidents – as to how to advise and consent, the Article is silent. Article III covers the judiciary but only provides that judges should continue to serve with “good behaviour.” In other words, it gives an “after” standard. Even our revered Federalist Papers give little guidance to the subject. One can only assume our founders presumed our President would nominate qualified individual for the courts and deference would be given to those choice unless the choice was wholly unqualified to serve, but that’s only a guess and a guess is not good enough. That’s where Article VI comes in.
Article VI requires all Senators, Representatives, members of the Executive, members of state legislatures, and members of the Judiciary to take an oath to “support the constitution.” For Senators, supporting the constitution includes confirming nominations from the Executive who they are absolutely convinces will also support the constitution. If there is any doubt in a Senator’s mind whether a nominee will support the constitution, it is the duty of that Senator to vote no – regardless of the political fallout. Likewise, if the Senator is convinced the nominee is qualified and will support the constitution, it is his or her duty to vote yes.
In the nomination of Judge Sonia Sotomayor to be the next Associate Justice on the U. S. Supreme Court. s everal Republican Senators have been fretting lately over whether to support or reject her nomination. Democrats hope GOP Senators vote no and risk a Hispanic backlash for opposing the first Latino nominee to the High Court.
The decision on Judge Sotomayor’s nomination and the nomination of others made by the President should be simple. Each nominee should be given a fair hearing, and in Judge Sotomayor’s case, her qualifications and judicial philosophy should be stringently tested. She should be thoroughly questioned and examined, and she should be required to answer each question posed, unless doing so would require her to pre-judge a pending case. After listening to all of her answers, if Senators are convinced she will support and defend the constitution, she deserves their votes. If there is any reasonable doubt on the question, Senators are obliged to vote no.
Judge Sotomayor, at this point, has many questions to answer and has a long way to go to convince Senators she will faithfully support the constitution. Does she truly believe some individuals are better than others to judge cases solely based on their gender and ethnicity? Does she support or endorse reverse discrimination or affirmative action, as her recent decision concerning the New Haven firefighters suggests? The 14th Amendment to our constitution, as written and intended, prohibits these sorts of discrimination, and if Senators are not convinced she will support the constitution, including the 14th Amendment, she deserves a “no” vote. The task is Judge Sotomayor’s to prove otherwise.