Since the Democrats have reprehensibly gone back on an oral agreement and delayed the Committee vote on the Alito nomination until next week, I thought I’d take this opportunity to opine on something that has troubled me throughout the fight over judges. Republicans, most recently Sen. Lindsey Graham during last week’s hearings, have bragged time and time again about the overwhelming confirmation of now-Justices Ginsburg and Breyer. They have argued that President Clinton, having won the election, had the right to choose Supreme Court nominees, and that their only role was to ensure that the nominee had the resume and the ethics to fit the bill. Now, they argue that Democrats should hold apply the same standard to President Bush’s nominees. Republicans would do well to remember that conservative icon Sen. Jesse Helms rightly cast votes against both of President Clinton’s Supreme Court nominees. While this may seem to say that it is legitimate for Sen. Barbara Boxer & Co. to cast votes against Judge Alito for their disagreement with the results of some of his decisions, a deeper look will illustrate that the two are actually quite different. Unless some Senators were to cast votes against Alito for his support for Griswold and the like, Alito has demonstrated that he should be confirmed with unanimous support. According to the Constitution, the President chooses the nominee and the Senate then has the opportunity to offer its advice and consent. Thus, the selection of the nominee is the sole prerogative of the President. The problem, however, is that those making the case that the Senate need only ensure that the nominee has the intellect and integrity to serve on the Court omit another essential qualification. The Senate has the responsibility to ensure that Supreme Court nominees strictly adhere to the Constitution.
While the President is entitled to general deference on Supreme Court nominations, the protection of the Constitution is even more important. Neither the President nor the Senate has the right to put Justices who will ignore the Constitution on the Court. Especially in the case of Ruth Bader Ginsburg, they did just that. To be sure, there can be legitimate differences of opinion on constitutional interpretation. There are numerous ‘close calls’ that reach the Supreme Court, and in these cases there can be perfectly legitimate differences of opinion. Such differences should not be used as reasons to vote against Supreme Court nominees.
In other cases, though, the Supreme Court clearly departs from the text and intent of the Constitution. The clearest, though not only, example of this can be found in the Supreme Court’s abortion jurisprudence. While most constitutional scholars would argue that the Supreme Court is silent on abortion, a few would make the case that it prohibits it. None, however, can legitimately defend Roe, Casey, or Carhart. Another example of a judicial abomination is the citation of foreign law in interpretation of the United States Constitution. Judges have no authority to do so. What’s more, relying on foreign law in US Constitutional interpretation is a violation of the good behavior standard for judges and should necessarily result in impeachment and removal. The two examples just cited are not close calls. They are fundamental indications of whether a would-be Justice would consider himself bound by the Constitution or by his own policy preferences. How a nominee would approach matters like these must be considered by the Senate, and nominees who would not consider themselves bound by the Constitution must not be confirmed.
During the Clinton Administration, Senator Jesse Helms voted against the confirmation of both Supreme Court nominees because he understood this. In a constitutional system, a particular judge’s vague idea of fairness cannot be permitted to supersede the Constitution itself. Voting against a nominee because of disagreement on a particular policy matter, as Sen. Boxer has done, is one thing. Voting against a nominee because that nominee will likely show contempt for the very Constitution that he is supposed to apply is another. Unfortunately, the former Senator from North Carolina is one of just a few who have understood this. Hopefully the Republicans currently serving in the Senate will come to do so as well.