The Senate, the Constitution, and the Confirmation Process

It is difficult to find anyone who is satisfied with the way Supreme Court Justices are appointed today. Many of the criticisms are prompted by partisanship, of course. But there is a substantial element of truth in the complaints made by partisans on both sides. And those who are not partisan, but who simply want a healthy process that conforms to the constitutional design and is likely to produce the best appointments, have perhaps the most to criticize. In this Essay, we suggest that a return to the confirmation process contemplated by the text and structure of the Constitution-a process in which the Senate plays a more independent role than it does today-would help eliminate aspects of the system that both sides, Administration supporters as well as Administration critics, find objectionable. It would also produce a better Court along two dimensions: a Court with Justices of greater distinction, and a Court that reflects a more appropriate diversity of views. Although often overstated, the criticisms of the current process are telling. Supporters of the Administration object that members of the Senate, and private groups generally critical of the Administration, expend enormous energy not in disinterested inquiry but in trying to "catch" the nominee: to find some statement in her record that reveals a belief so extreme as to be "out of the mainstream." The hearings themselves consist of trying to get the nominee to betray views that will be unacceptable to the public at large, or, failing that, to make inconsistent statements that can be used as evidence of an unprincipled "confirmation conversion." As a result, the Administration's supporters insist, many potential candidates with distinguished records are effectively disqualified from the Court because their opponents can unfairly attack them with isolated statements they have made in the past. The result is an unduly political and sensationalistic spectacle that degrades the Court, the Senate, and the nominee.