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Legal Commentary

: Balkinization

When to confirm Supreme Court nominees

By Jack M. Balkin

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In the discussion of Senator McCain?s recent speech on judicial nominees, one passage has gotten too little attention: his claim (in the course of attacking Barack Obama for voting against the Roberts and Alito nominations) that the decision of whom to place on the Supreme Court ?under our Constitution . . . is the president?s call to make,? and that nominees should be confirmed if they are ?qualified.? This reading of the Constitution is widely shared. It is also indefensible.

Article II, section 2 of the Constitution provides that the President ?by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.? It says nothing about the criteria by which Senators are to use the discretion thus given to them. In this it is structurally identical to the provision in Article II, section 3 providing that the President ?shall . . . recommend to [Congress?s] Consideration such Measures as he shall judge necessary and expedient.? The President can recommend legislation to Congress. Congress can then pass it, or not. When Congress considers a proposal by the President, it has absolute discretion. The question a Member of Congress ought to consider in such a case is whether the legislation would be good for the country. It has not yet occurred to any President to claim that his proposals ought to be enacted because they are free of typographical errors.

Of course, the fact that a bill is full of such errors is a good reason not to enact it. And if the president does nominate someone to the Court who is so dim that they are likely to be intellectually overwhelmed by the work ? I?m sure you can think of a recent example - then the Senate ought to reject the nominee. But once this hurdle is passed, the question for the Senate should be whether the confirmation of the nominee will be good for the country. (This idea isn?t original with me. See Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657, 657 (1969).)

Jack Balkin is right that what McCain is up to is just the familiar game of partisan entrenchment. McCain?s dubious constitutional theory is, as best I can tell, an artifact created by Republican Presidents during Democratic control of the Senate, in an attempt to stigmatize their political opponents? responsible exercise of their constitutional checking function.

The sad and puzzling thing about the Democrats, during the Roberts and Alito confirmation hearings, is their inability to articulate what is at stake. For the most part, they accepted the bogus constitutional theory articulated by Senator McCain, and then, disgracefully, attempted to trash the characters of the nominees. John Roberts and Samuel Alito are decent, smart men. That?s not what was really at stake. What was at stake is whether the effort to constitutionalize the Republican party?s dubious ideals ought to continue.

Full post as published by Balkinization on May 08, 2008 (boomark / email).