- The Washington Times - Saturday, April 2, 2005

It now appears certain there will be some sort of showdown in the Senate over that chamber’s understanding of how it is to consider the confirmation of President Bush’s nominees to the federal courts. On the surface, the debate is about “majority rule,” the meaning of the Constitution’s provisions regarding the “advice and consent” of the Senate, and partisanship: Republicans and Democrats pointing fingers at one another and arguing politics is displacing principle.

There is more than a little truth in all of this, of course. But at root, there are deeper questions that need to be probed for the Senate to discharge successfully its “advice and consent” responsibilities.

The job of confirming presidential nominations to the executive branch and the courts was assigned to the Senate for a reason. The Senate, as originally designed, was that legislative body better suited for such a task. Its makeup, the way it was to conduct business, its “character” made it ideally suited to provide the “cool and deliberate sense of the community” that should go into considering nominees for high, appointed office, and that must always prevail over the passions that might, from time to time, animate public sentiments. Moreover, only the Senate, again by its very character, could reflect both the popular will of the people, and the long-term interests of the nation when deliberating executive nominations.

But the Senate as devised by those who wrote the Constitution in 1787 differs fundamentally from the Senate today. The Framers’ Senate was a federal institution; members were selected by state legislatures and sent to the nation’s capital to represent the interests of the states as states. The Framers’ Senate was an institution that would complement the more “popular” House of Representative; able to consider the “long view” due to their longer terms and that only one-third of the Senate must seek re-election at any time, while the entire House of Representatives must stand every two years.

The Framers felt the Senate would have a special obligation — a “senatorial trust” — which would require a “greater extent of information and stability of character” and would bring a sense of both national and popular sentiment to the consideration of important issues. It was for this reason the Senate was delegated the responsibility of offering “advice and consent” on presidential nominations and for ratifying treaties negotiated by the president.

But that was the Framer’s Senate. Today’s Senate is popularly elected and, while it operates according to its very unique rules and procedures, its character resembles that of the House far more than the Framers ever envisioned. The recent history of confirmation skirmishes reflects this.

Ideally, when considering someone for judicial appointment, senators might want to become familiar with how the nominee’s mind works, his vision of the Constitution, his approach to constitutional and statutory interpretation, how he might understand such principles as separation of powers and federalism, etc. The deliberations surrounding confirmation decisions should reflect the Senate at work as a deliberative institution attempting to carry out its fiduciary responsibilities.

Deliberation in the contemporary Senate reflects how much the “mission” of that chamber has changed. Senators seek to respond to voters and interest groups, and deliberation has become more a matter of calculating electoral costs and benefits rather than serious discussion of the merits of a matter. The debate has not been about judicial philosophy or temperament so much as who might win and who might lose if a nominee is confirmed. The issues have not revolved around nominees’ “fitness of character.” It has been about the potential policy consequences that follow judicial selections. What seems to matter most is what groups favor and oppose a nominee and the nominee’s position on issues important to those groups. Senators have become concerned with how a nominee will come down on an issue. They should concern themselves with how a nominee thinks. There is very little serious discussion about the most important part of judging — judgment — how a judge makes up his mind.

Much of this is because the courts play a far more influential role in everyday life than the Framers envisioned. The stakes are higher than ever when an individual is nominated to the federal courts. But a more influential judiciary only makes judicial confirmations more important. And it means how the Senate meets that responsibility can have far-reaching consequences.

In an age in which reasoned, informed and informative deliberation of judicial nominations is needed more than ever, the Senate is about to debate how those deliberations shall proceed. At one level, the question appears to be whether a minority of senators should be able to deny a majority the opportunity to vote. On another level, the question is whether the Senate, as an institution, can exercise the sort of fiduciary responsibility — that sense of “senatorial trust” — that should go into making those kinds of decisions and inform the confirmation process generally. Let us hope that in the days ahead, the Senate exhibits that sense of “character” the Framers envisioned it would have.

Eugene Hickok was deputy education secretary during President George W. Bush’s first term. Prior to that, he was Pennsylvania’s secretary of education. He has been on the faculty of Dickinson College and the Dickinson School of Law.

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