Senate Confirmation - what criteria?

In an academic, non-partisan manner (I can dream), what should be the criteria for the Senate confirming or rejecting a SCOTUS nomination? I’d prefer this not be a “but they did it…” listing.

I don’t like the litmus test concept. Although not specified in the Constitution, I’d like some academic credentials to indicate an aptitude for analysis and evaluation.

I’d like for a member of the KKK to be rejected.

Since I think a lot about SC nominations in my voting, I tend to think that winning a national election should give you some leeway to make a reasonable choice.

It should be someone whose judicial experience shows him or her to be a person who applies the law instead of manufacturing it.


Article II, Section 2, paragraph 2 of the United States Constitution states:

(Bolding mine.)

The Standing Rules of the US Senate offer no information on the confirmation process.

The US Senate defines “advice and consent” as:

Whatever “credentials” you may desire in a SCOTUS nominee is purely your own. Unless you can convince the US Senate your views on the matter carry considerable weight, Senators will decide on their own, with their own individual proclivities, what “advice and consent” means, including credentials for the job.

In other words, for the average American, our individual opinions on the matter mean squat.

Is it because the person choosing the candidate is liberal that you want this criteria to be met now? Conservative justices see fit to manufacture intent when it suits them.

This is an Internet discussion. You are the only one so far who seemed to think this thread was intended to be binding. The key word in the OP is “should”. It is simply opinion, mostly in hopes that someone will suggest something that I hadn’t thought of.

See, that’s the thing. The law is, fundamentally, what courts do. The corpus of judicial decisions, that’s the law. And this is especially true in common law countries.

So, as I think Sitnam has already suggested, I’m not sure that your suggested criterion is all that useful. Nine times out of ten, when a court decisions is criticised for manufacturing law instead of applying it, that really doesn’t mean much more than it;'s a decision that the critic doesn’t like.

I think if your criterion has any substance, it doesn’t mean much more than that a SC nominee should be somebody who takes seriously, and has respect for, the established jurisprudence of the Supreme Court. But they pretty much all do that.

I’d agree with you in general, but Hugo Black wasn’t a terrible Justice.

That’s not how the Supreme Court is supposed to work or has ever worked. Judges are supposed to interpret the law and that means they have to make decisions.

There was a recent discussion of the Kelo decision in another thread. The question was whether a state could use eminent domain to take property for a private business.

Here’s what the Constitution says: “nor shall private property be taken for public use, without just compensation.”

You’ll notice there isn’t an explicit answer to the question. If there was, the issue would have been settled long before it reached the Supreme Court. But it isn’t there so the Justices had to interpret what public use means. Some justices said taking property for a private business falls within public use and some justices said it does not.

Despite the fact that they came up with different answers, they were all applying the same exact law. Nobody manufactured any new law. They just disagreed on what the existing law meant.

No, I merely pointed out the current “standard.” Anything here is merely an opinion, as stated in the OP. In other words, everyone will apply their own litmus test, something you do not want.

If you want to be strictly “academic” that is pretty much in place already. You have to have the academic qualifications just to even be considered. However, I must agree with one comment Scalia made (according to NBC News) that every current SCOTUS judge has either a Harvard or Yale law degree. Perhaps there should be a criteria that the academic credentials must be spread out from law schools all over the country, and not just two schools. In other words, separate the country into nine geographic areas and elevate judges from law schools in each of these areas. That way Harvard or Yale gets only one judge on the bench at any one time.

Of course, the most important criteria: How do you feel about the legality of abortion?

Making laws is what legislators do.

That’s stare decisis, which is another matter.

An SC nominee is someone who should takes seriously the Constitution, which is the supreme law of the land. “Taking it seriously” means not making things up and sticking them in there, or ignoring what it says in favor of what you think it should say.

Yes, obviously - no Democrat is going to vote for a justice who might limit or repeal Roe v. Wade, and few Republicans if she might not.


In a perfect world…

The Senate should ask questions relating to whether the nominee’s views or past decisions are based on a sincerely held, internally consistent, and reasonable view of the law. In my view, Bork probably fails that test. Most recent nominees pass it. I don’t think the Senate should be considered an equal partner in a negotiation over the nominee. Rather, I think they should defer to the President’s selection and challenge the selection only if the nominee is unlikely to make decisions based on a sincerely held, internally consistent, and reasonable view of the law.

Bork was before my time, so I don’t really know much about his confirmation hearing process. I think internally consistent is a good criteria. I don’t care about sincerely held much, and anything that includes “reasonable” is right out since that gives carte blanche to do anything.

I think I’d prefer limited terms rather than lifetime appointments, but I think I can be convinced either way on that one. It’s a pipe dream though, it will always be just politics.

But the question is how this should work in a perfect world, not how this test would be applied by the actual critters who rule us.

If this is an argument against judicial activism, I agree. But if you’re opposed to judicial activism, then I presume that you were strongly opposed to the late Antonin Scalia and continue to be strongly opposed to his friends Alito, Thomas, and to a lesser extent Roberts – a lesser extent only because Roberts some shred of concern for at least some appearance of integrity. Because in fact these guys are demonstrably far more activist than the liberal side of the Court.

Not really disagreeing with you, because that is often the case. But I would suggest that there exist fairly objective tests for politically motivated judicial activism. One of those red flags is when a court abandons long-standing principle for ruling on the merits of the case before it and takes it upon itself to unnecessarily expand the scope of a ruling far beyond what anyone ever asked for, in order to advance a political agenda.

There are lots of examples of that with this court. Take Heller vs. DC, for example. They could have ruled for or against the issue at hand, but instead they chose to challenge a hundred years of jurisprudence which had ruled that the words “A well regulated militia being necessary to the security of a free state …” were part and parcel and inseparable from the rest of the Amendment. That had either explicitly ruled that the amendment conferred on state militias a right to bear arms but did not give individuals a right to own or carry a weapon, or else scrupulously avoided the issue altogether as a political and policy matter. Not this court’s conservatives. They just simply took it upon themselves to consider it a given, a matter that was plainly obvious to them even if to no one else, that a reading of the Second Amendment that was historically implausible and that vast numbers of constitutional scholars vehemently disagreed with was the correct one. And not just liberals. Chief Justice Warren Burger, a conservative Nixon appointee, had mocked the individual-rights theory of the amendment as a fraud.

The Citizens United decision was, if anything, even worse. I made some comments about it here. The short version is that this was a relatively obscure matter that could have been and indeed was easily resolved in favor of the plaintiffs. But before the decision could be handed down Kennedy and Roberts walked it back and had the case re-argued, eventually turning it into a vastly over-broad political decision that fundamentally changed the whole political landscape of the United States with respect to money in politics.

It should be astounding and deeply concerning to everyone that replacing Scalia has become such an incredible hot-button political issue. In most other countries a Supreme Court appointment barely rates a short notice on the inside pages of a newspaper. All the political hoopla is an explicit acknowledgment that the Supreme Court is itself an undisguised political instrument, as is the evidence of a long string of 5-4 decisions.

How silly. Your cite characterizes judicial activism as* “readiness to overturn legislation”.* What a stupid definition. If the legislature passes unconstitutional legislation 100 times in a row, it’s not activist to overturn it.

I was almost disappointed - here I thought you may go a whole post without mentioning how things are done in other countries! We should totally use how other countries do it as a factor in senate confirmation!

Also, few other countries have Supreme Courts empowered to overturn duly passed legislation on the grounds that it conflicts with the Supreme Court’s interpretation of some inherent individual rights.

Canada only created this in the last couple of decades. AFAIK, the UK still doesn’t have it, right?

That is such facile nonsense that I barely know where to start responding to it.

If a supreme court anywhere in a working democracy overturns duly enacted legislation by a democratically elected legislature 100 times in a row, I would suggest that finding fault with the legislature would be looking in entirely the wrong place. Neither the constitution itself nor its various and sometimes contradictory interpretations over the changing circumstances of years and generations make claims to perfection, eternal validity, or objectivity of interpretation. Indeed this is rather startlingly evident when whole series of similar judgments are decided by 5-4 majorities in a predictable lineup of conservatives against liberals. In such a situation, where a supreme court is a political body in all but name, the number of times their avowed conservatives defy the wishes of the legislature versus the number of times the liberals do it is a pretty good starting point for measuring judicial activism. But sure, it’s not necessarily the whole story. Perhaps we can look further.

So let’s do that. There’s also the matter of unnecessarily expanding the scope of a ruling, so that you not only have a strained judicial interpretation to begin with, that interpretation is applied much more broadly than would be necessary to resolve the case.

I already gave several examples and the cite I provided has a further link to many more. Citizens United is a good example. The authors of the law in question were a respected moderate Republican, John McCain, and Russ Feingold, a Democrat who is perhaps one of the most principled individuals to hold a Senate seat in recent memory, both of them, incidentally, recipients of the John F. Kennedy Profile in Courage Award for their public service. I mention this to highlight the fact that the bipartisan McCain-Feingold legislation had a pretty fine pedigree that doesn’t exactly suggest constitutional recklessness. It was opposed by a vocal minority of right-wingers but ultimately passed the House 240-189 and the Senate by a super majority of 60-40. Furthermore, it can be fairly accurately said, cutting through some of the legal complexities, that in 2003 McConnell v. FEC in all material respects upheld its constitutionality.

Ah, but the Supreme Court in 2003 had quite a different makeup. One of the key majority rulings in McConnell was supported by Breyer, Stevens, O’Connor, Souter, and Ginsburg. Scalia, Thomas, and Kennedy of course railed in the usual vehement dissent, along with Rehnquist. Roberts and Alito were not yet on the bench. How different things were when Citizens United was decided!

But it doesn’t stop there. It’s so much more than that. Most observers believed that the anti-Hillary movie and the promotion thereof, as much of a pile of trash as it was, didn’t violate McCain-Feingold, that the lower court had erred, and that the FEC had over-reached. Which was pretty much what the Supreme Court had already concluded, but that wouldn’t accomplish the desired political change the conservatives wanted to see. Kennedy and Roberts arranged for the case to be re-argued and to take on a much broader scope. A scope that, as I mentioned before, overturned McCain-Feingold and radically changed the whole face of political finance in American politics, in one of the most flagrant acts of judicial activism ever seen. Five unelected conservative activists overturning the will of the people, just exactly as they repeatedly had done by the same 5-4 margin in Federal Election Commission v. Wisconsin Right to Life, Davis v. Federal Election Commission, Arizona Free Enterprise Club Freedom Club PAC v. Bennett, and later in McCutcheon v. FEC.

You may paint it as simple application of the constitution, I see it as nothing short of breathtakingly incredible. Scalia, in particular, was extraordinarily skilled at disguising his rampant political agenda under a veneer of constitutional literalism, from whose judgments proceeded some unabashedly creative exercises in interpretation that, amazingly, always coincided with an unwavering conservative ideology.

Is that sarcasm? I thought you had trouble with sarcasm. :wink:

At any rate, do you question that SCOTUS is divided along highly ideological lines, and that there has been a virtual epidemic of 5-4 decisions precisely and predictably along those lines? Can you show me another modern advanced democracy in which the Supreme Court is such a flagrant political tool? If not, I would suggest that the role of a Supreme Court in other countries as a judiciary rather than a political tool is a rather striking and salient difference and worthy of note.

Well, if you want to regard the 34 years since 1982 as “a couple of decades”, then yes.

Your only substantive response to me is a quibble about whether three decades constitutes a couple? Ok then. I concede. Canada has a great and long history of judicial review that is almost as old as my little brother.

Richard, I didn’t really see much there to respond to, though maybe I didn’t understand your point. One could argue that the “34 years” was really more than 50 years, going back to the enactment of the Canadian Bill of Rights in 1960. But since the 1960 Bill of Rights was criticized in part because it only enshrined rights that already existed rather than creating new ones, one could make the case that principles like freedom of speech and freedom of religion existed since Confederation.

The significant event of 1982 was the establishment of a formal and sovereign Constitution, which was historically and symbolically important, but hardly made any practical change to mainstream society. It was certainly the formal basis of the 1988 ruling that overturned all abortion laws (though the law had already been significantly liberalized decades earlier) or to support SSM (but again, those laws had been liberalized earlier, too). It’s interesting that on matters like abortion and campaign finance, Supreme Court of Canada rulings have been so dramatically different than those of the US Supreme Court, despite constitutional rights that are often word-for-word similar, which just goes to my point with Bone about the subjectivity and social-value context of judicial interpretations.