Since at least the Bork nomination, one strong interpretation of the Senate’s constitutional duty to “advise and consent” on judicial nominees – propounded by Orrin Hatch, among others – has been that senators cannot properly oppose a nomination on the basis of ideology alone, and that opposition to a judicial nominee can only be founded on questions of that nominee’s character and fitness to be a judge. So, presumably, it would be okay to oppose a nominee who admitted to beating his wife, but not one who believed that the Eighth Amendment permitted the federal government to put a man’s wife to death as punishment for a crime her husband committed. With the compromise deal reached recently by the so-called Gang of Fourteen, debate has focused on the ability of Democrats to invoke the ‘extraordinary circumstances’ clause that would allow them to threaten to filibuster a Supreme Court nominee. Reasonably, this debate has paralleled the larger constitutional question, with many conservatives arguing that ideology on its own could not possibly be grounds for the requisite extraordinariness. Some individuals (I think Senator Jeff Sessions is one) have qualified this somewhat, saying, “Ideology cannot be a cause for filibuster, except at the extremes.” Others have categorically denied that ideology can legitimately be opposed.
My question is this: How extreme an ideology can a judicial candidate profess before a Senator can validly decide to oppose the nomination? See, there must be a point at which ideology and character/fitness become indistinguishable from each other – I want to see if we can come up with some principled and consistent way of pinpointing it, hopefully by consensus.
For example, it seems to me that opposing a judicial nominee simply because they’re of a different political party should be out of bounds under any conception of the advise and consent clause and the filibuster agreement. On the other hand, I think most people would agree that a senator would be justified in invoking extraordinary circumstances against a nominee who, at the time of his nomination, is an Imperial Grand Wizard of the Ku Klux Klan and a passionate believer in white nationalism. (If you feel that mention of Robert Byrd or Hugo Black is warranted here, go ahead. I don’t think they’re relevant to the thread.)
So let me throw out a few scenarios of Supreme Court nominees who hold certain jurisprudential or political beliefs. I’d like people to tell me which, if any, of these nominees a senator would be justified in opposing on ideological grounds. Assume for the purposes of the question that the nominee is otherwise learned in the law, has no other skeletons in his closet, and is sufficiently professionally qualified to be considered for a judgeship.
A) At his confirmation hearing, the nominee states his personal belief in an international Zionist conspiracy and says that he wouldn’t want his daughter to marry a Jewish man, but assures the Senate that he wouldn’t let his personal anti-Semitism affect the fair and objective performance of his judicial duties.
B) At his confirmation hearing, the nominee states that he is a member of the American Communist Party, but says that his personal views will not affect his jurisprudential philosophy.
C) At her confirmation hearing, the nominee states her belief that men are biologically inferior to women, and calls for an expansive reading of the equal protection clause to rectify two centuries of gender inequity.
D) At his confirmation hearing, the nominee states his firm belief that the Court, in the Slaughterhouse Cases, grievously misread the intent of the framers of the Fourteenth Amendment with regard to the privileges and immunities clause. Being a devoted originalist, the nominee states his intention to overturn the Slaughterhouse Cases at the first opportunity.
E) At her confirmation hearing, the nominee – a strong advocate of federalism and states’ rights – presents her learned belief that the Thirteenth, Fourteenth, and Fifteenth Amendments were not passed with the legitimate consent of three-quarters of the states. Therefore, she says, as a Justice she would treat these amendments as dead letters until they could undergo the Article V process anew.
F) At his confirmation hearing, the nominee states his belief, in accordance with the constitutional text, separation of powers, and his personal principles of limited federal government, that the Administrative Procedures Act (the organizing and empowering statute for all modern administrative agencies) is an unconstitutional delegation of legislative and judicial powers to the executive branch. As a Justice, he would refuse to give any deference to agency adjudications, and would construe regulations as narrowly as possible, overturning all of them that strayed beyond the strict letter of congressional statute.
G) At his confirmation hearing, the nominee states his belief in natural law, and says that the framers, who were godly men, intended the Ninth Amendment to be the respository of all natural law rights not explicit within the constitutional text. The nominee’s personal vision of natural law includes inalieable rights to choose whether to bear children, to choose whether to discriminate against others, and to be secure in one’s private property (including the choice whether to be taxed). He would give the Ninth Amendment content, and would rule from the bench, in accordance with these beliefs.
H) At his confirmation hearing, the nominee states that Brown v. Board of Education cannot remotely be justified by the originalist school of jurisprudence to which he adheres, and thus segregation is perfectly constitutional until an amendment to the contrary can be passed.
I) At her confirmation hearing, the nominee states that her considered interpretation of the Fifth Amendment’s takings clause (and its extension to the state and local governments through the Fourteenth Amendment) is that all regulations, to the extent that they deprive individuals of economic value, are unconstitutional unless just compensation can be achieved. Thus, a city that passes a zoning ordinance disallowing an adult video store from setting up shop must pay the owner of that store an amount equivalent to the expected revenue he loses as a result.
J) At his confirmation hearing, the nominee states his intention to overturn Johnson v. McIntosh (1823), the Supreme Court case recognizing federal land title over Native American land title on the principle that Americans, having conquered the continent, were entitled to the spoils. The nominee says that, until he is successful in overturning this case, he will construe all statutes, regulations, and disputes as broadly as possible in favor of Native Americans, who he believes, as a class, to have been unjustly deprived of their sovereignty, their land, and their civil rights.
Which of these could senators validly oppose? How do you draw the line?
Finally, here’s a question that may or may not cause posters to qualify their answers: Does the filibuster agreement bind senators more stringently than the Constitution does? That is, were senators more free, before this agreement, to validly oppose judicial nominees than they are (at least ostensibly) now, or did the filibuster agreement just recodify and make more explicit the meaning of the constitutional advise and consent clause?
