- The Washington Times - Sunday, June 26, 2005

In 1986, Ronald Reagan seized the moment and redefined the Supreme Court. With a Republican majority in the Senate — a majority that would disappear in the next election — he chose to elevate Associate Justice William Rehnquist to the center chair and to nominate Judge Antonin Scalia to the high court. Both were confirmed; Chief Justice Rehnquist with a narrow majority, Justice Scalia unanimously.

The court Mr. Reagan created has established the terms of the national discussion on the meaning of the Constitution and nature and scope of judicial power. It has been, at times, a difficult conversation to understand. The following year, 1987, Robert Bork’s nomination initiated a new era in the politics of “advice and consent.” That era, it is safe to say, continues.

The Senate has attempted during this time to be a sort of “constitutional safety valve,” trying to force presidents to send forward “confirmable” rather than controversial nominees.

The strategy has by and large worked. With the notable exception of Clarence Thomas, the men and woman sent to the Senate might be best characterized by their confirmability. It seems that’s why they were chosen.

That’s not the right reason to nominate someone to the Supreme Court. The issue should not be the Senate’s sense of a nominee. It is, after all, the president’s choice to make.

There is a reason the Constitution confides the power to nominate judges to the president and not the Senate. Writing in Federalist 76, Publius (Alexander Hamilton) tells us, “One man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even superior discernment.” Continuing, he argues one person “will naturally beget a livelier sense of duty and a more exact regard to reputation” and will have “fewer personal attachments to gratify than a body of men.” One person will be less “distracted and warped by the diversity of views, feelings and interests, which distract and warp the resolutions of a collective body of men.” And the president is the only officeholder under the Constitution chosen by all the citizens.

Ideally, a president will present to the American people, and the Senate, his reasons for choosing the man or woman he wants on the court, will make his case, and let the Senate act. A prudent president will surely consider how the Senate might respond, and may even consult with senators. But that should not be his first or even a major concern.

When a president allows a candidate’s “confirmability” to become the primary criterion for selecting someone, he surrenders his constitutional obligation and, inherently, politicizes the process. Again, Publius foresaw this: “[I]n every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.”

Consider how the Senate discusses judicial nominees. Their records are scrutinized in terms of winners and losers, right versus left, liberal versus conservative. The long list of organizations supporting and opposing the nomination are always at the ready, as though the true test of judicial worthiness is the approval of this or that interest group. There is precious little serious discussion of his temperament, the intellectual rigor and depth of opinions he has written or his record of service. It is a blatantly political process.

President Bush has made judicial selection an important issue in his presidency. It was a critical issue in both presidential campaigns. He has described with clarity and consistency what he seeks in a judge, his thoughts on the proper use of judicial power and mode of constitutional interpretation. Unlike the Senate, he has not talked in terms of any policy agenda he would have the court pursue.

Curiously, though Senate critics have assailed him for “politicizing” the nomination process, he has done just the opposite. He has articulated the principles that matter to him in a jurist and sent forth nominees he feels mirror them.

As the next vacancy on the Supreme Court inevitably approaches, the president should continue the course he has marked to this point. He should choose the person he feels will most adhere to his understanding of the rule of law and judicial conduct. He should take time to explain why his nominee is worthy of his selection, the consent of the Senate and the trust of the American people. And then he should admonish the Senate to carry out its duties with similar dignity.

The most recent round of “confirmation politics” has done little to enhance the reputation of the Senate, or of the men and women nominated by the president and forced to withstand the circuslike Senate conduct. And it certainly has contributed nothing to the popular understanding of the courts, the rule of law or the Constitution.

The probability of a Supreme Court vacancy gives all involved the chance to rise to the constitutional occasion. That may be too much to expect, however. Just ask Publius.

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


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