A Senate Judiciary subcommittee last week examined whether ideology should be a sufficient rationale for disqualifying nominees to the federal courts.
Candidates who fail their test, regardless of qualifications, won't be confirmed.
This would represent a historic change in our approach to the confirmation of judicial nominees. For the first time, the application of so-called ideological "litmus tests" is being openly advocated. But this would lead us down a dangerous path, one that would set a bad precedent for treatment of future judicial nominations.
Using the Senate's "advice and consent" power to try to maintain some sort of ideological balance would quickly move us into the realm of the ridiculous--turning 100 senators into latter-day diviners. For the Supreme Court, for example, senators would have to guess how justices and nominees will vote on every conceivable case that might come before them, so that future nominees don't upset the current "balance." Is there anyone familiar with the workings of the Senate who believes that 100 elected partisans could conceivably sit together and determine what constitutes a properly "balanced" court?
As former White House Counsel C. Boyden Gray testified: "If senators focus on results or outcomes in particular, people will simply view the judiciary as another political institution."
Additionally, there are changing factions depending on issues before the court. The majority on the court shifts, depending on the issue. Even more troubling, "balance" fails to consider that legal norms in one era may be entirely inappropriate in another. Should the "balance" of the court that decided Dred Scott, for example, be maintained? Or are we now going to pick and choose the issues on which we want to maintain judicial balance and those on which we don't? Clearly, this is no way to deliberate on nominations for the federal bench.
Historically, the Senate exercised its "advice and consent" power much more responsibly. The few exceptions to this tradition proved the rule. Though never a rubber stamp, the Senate followed the philosophy of Alexander Hamilton that when it came to a president's nominations, "the person ultimately appointed must be the object of his preference."
This deference is fundamental to our democratic process. Indeed, a central prong in Al Gore's attack against George W. Bush was an acknowledgment that Bush's election would result in the appointment of judges who shared Bush's conservative views. This was a plausible argument because it was consistent with 200 years of tradition. For example, Republicans overwhelmingly voted for President Clinton's Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer despite their political ideology. In fact, a Senate controlled primarily by Republicans made Clinton the second all-time leader in impaneling federal jurists (377, just five short of Ronald Reagan).
Under this new test, what will happen when a vacancy occurs on the Supreme Court? Suppose an admittedly conservative president nominates a well-known Republican. Suppose this nominee has even run for partisan political office--perhaps rising to the position of Republican majority leader of the state Senate--and actively supported conservative legislation. What if this nominee was certain to change the historic makeup of the court and yet refused to give a firm position on abortion?
Obviously, this candidate would flunk the litmus test that some of my colleagues would now impose. It's a very good thing, then, that she has already been confirmed. She is, of course, my fellow Arizonan, Sandra Day O'Connor, a widely respected member of the U.S. Supreme Court.