American Politics and Supreme Court Appointments

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1

I was confused by the Senate discussions of the most recent nominees to the Supreme Court (Sonya Sotomayor and Elena Kagan).

All the Senate speakers claimed that what matters in the Senate debates is the nominees’ legal aptitude and experience, as well as their clear understanding that a Justice’s personal and political opinions will not affect their reasoning and decision-making in any of the cases considered by the Court. Now, it may well be difficult for a Senator to be completely sure that a nominee’s profession of reverence for the law and legal precedent was sincere, but the fact remains that it seems universally agreed that one’s personal and political views are flat-out irrelevant to the Senate’s role in this appointment process.

AND YET, some of the very same Senators making this claim were also saying that these particular nominees’ personal convictions – such as Kagan’s views on gun control and military recruiting - are too liberal. How does this make sense?

Either such opinions matter or they don’t, right?

2

The Constitution itself does not provide any guidance either for the President in selecting his nominees or for the Senate in giving the President its advice and, more significantly (I suppose), its consent in the appointment of Supreme Court Justices.

From Article I:

[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

(Note: the only illumination this section provides on the issue of Senatorial debate on Supreme Court nominees is that – apparently – it is not Constitutionally sanctioned for a two-thirds majority of the Senators present when the voting takes place to be required to indicate Senatorial consent on a particular Supreme Court appointment. Although there is no absolute prohibition of requiring a 60% majority of the whole Senate membership, not of just those present, that practice is not necessarily contrary to general sense of this Article either. This stricture was probably added to the confirmation process by some “activists” of the past.)

3

Taking political considerations into account in determining Supreme Court appointees is therefore in fact permitted by the Constitution, both for the President and for the Senate.

But wait: everyone in the Senate seems to agree that an individual’s personal and political convictions should not matter in the selection of new Justices. Today, this seems to extend also to the President, as evidenced in the outrage some Republican Senators expressed at President Obama’s recent statement that he was looking for nominees who could empathize with those affected by their decisions. In their own deliberations – in both the case of Sotomayor and Kagan - such Senators hammered away at the candidate to be sure that their personal past experience would not be allowed to influence their legal judgment on the Court. Democratic Senators, incidentally, had also grilled President Bush’s nominees on their clear understanding that their personal views , in this case conservative views, would not cloud their legal judgment.

It may not be a Constitutional matter, then, but everyone professes to believe that only legal aptitude and experience matter in the selection of a Supreme Court Justice.

But the fact is that many Senators – and especially today, most Republican Senators - clearly don’t really believe this. Why lie about it?

Could it be that Senators recognize that a great majority of the electorate believes that neither the nomination nor the confirmation of a Supreme Court Justice should be based primarily on partisan politics?

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