Michael Gaynor
January 25, 2006
Alito nomination lesson: Nominate strict constructionist, not "consensus" candidate
By Michael Gaynor

Judge Samuel A. Alito, Jr.'s nomination to succeed Justice Sandra Day O'Connor as an Associate Justice of the United States Supreme Court was approved by the Senate Judiciary Committee by a party line vote, 10 to 8. He will be confirmed by the Senate by a slim majority (as was Justice Clarence Thomas, 52 to 48) on a nearly party line vote. So be it!

For President Bush, there is an important lesson: continue to appoint highly qualified strict constructionists whenever the opportunity arises; expect the usual Democrat obstructionism and egregious efforts by the secular extremist/pro-abortion/far leftists to defame whoever you nominate; and continue to explain why it is right for you to appoint strict constructionists and wrong for you to appoint non-strict constructionists. Because: no one worth nominating would receive 100% Senate support in this time; the shameless lies of your scurrilous political opponents need to be confronted and exposed; and the United States Supreme Court's mistakes need to be revisited and rectified instead of covered up.

Now Chief Justice John Roberts was superbly qualified, and received the American Bar Association's highest rating. But half the Senate Democrats voted against him (and the other have voted for him, in the hope of enhancing the effect of their opposition to President Bush's subsequent nominees).

It was what Wendy Long, counsel to The Judicial Confirmation Network, called "a partisan set-up":

"This [Senate Judiciary Committee] vote [on the Alito nomination] has less to do with the merits of the nominee than almost any vote for any Supreme Court Justice in history. Judge Alito is a man of unquestioned legal brilliance, integrity, fairness, and judicial temperament. He has more federal judicial experience than almost any Justice nominated in United States history. He was rated unanimously well-qualified for the Supreme Court by the ABA. His fellow judges, law clerks, and colleagues testify to his fairness and impartiality and absence of a political agenda. Men, women, black, white, liberal, conservative everyone who knows him supports him overwhelmingly.

"This vote is the culmination of a partisan set-up that began with the 78-22 vote for Chief Justice Roberts. Many of the Democrats who voted for him did so to set up a false credibility in order to vote against President Bush's next nominee. Judge Alito just happens to be that nominee."

Before Judge Alito was nominated, Ms. Long not only asserted (rightly) that "the endorsement of 100 Senators is all but impossible in the current climate, and...certainly not necessary or even desirable," but also that "[w]hat is important is that the President nominate, and the Senate confirm, the kind of Justice he has promised, one who has outstanding legal credentials, a great intellect, an ability to write his or her own opinions, and...a commitment to faithfully and impartially apply the Constitution."


Back in May of 2005, the Legal Affairs Debate Club recognized the obvious that debates over nominees for appellate court judgeships producing intense acrimony in Congress and, anticipating United States Supreme Court vacancies, contemplated whether "candidates exist who are approved by conservatives, lauded by moderates, and acceptable to liberals" and asked, " Who is the 100-0 nominee?"

Arkadi Gerney, Director of StartChange, an advocacy group, argued that there is the potential for the next Supreme Court nominee to be confirmed unanimously.

Carl Tobias, the Williams Professor at the University of Richmond School of Law, blamed both parties for the "deteriorated condition of federal judicial selection" and brazenly proposed that Senators give the President a list of nominees from which to choose:

"It is clear that both Republicans and Democrats share much blame for the present deteriorated condition of federal judicial selection. For example, the Republican Senate majority delayed consideration of many nominees submitted by President Bill Clinton, and 60 never received confirmation votes. Democrats have delayed a number of President George W. Bush's appellate nominees, even using filibusters to block some. The Republicans' threatened detonation of the 'nuclear option' would violate Senate Rule 22 and increase executive appointment power at the expense of the Senate's advice and consent power."

[Note: This law professor's use of the phrase "detonation of the 'nuclear option'" signifies his enthusiastic embrace of filibustering of judicial nominees. THAT violates the spirit if not precisely the letter of the Constitution, which explicitly states that nominees are confirmable by a simple majority, not a supermajority and implicitly requires the Senate to act upon a nominee within a reasonable period of time. Senate Rule 22 does not supersede the Constitution, and, under Senate Rules, may be amended by a majority vote. Of course, an amendment of a Senate Rule in accordance with the Senate Rules certainly should not be described as a violation of that Rule.]

Professor Tobias continued:

"Thus, the judicial selection process has been punctuated by accusations and recriminations, partisan infighting and paybacks for nearly two decades. These phenomena have undermined public respect for the Executive, the Senate, the judiciary and perhaps even the nominees appointed. Therefore, it would be valuable for both political parties and the nation to break the vicious cycle, halt the downward spiral, and stop the counterproductive dynamics. Perhaps finding a consensus Supreme Court nominee will help rectify or at least ameliorate these difficulties."

The problem, Professor Tobias, is that judges are supposed to be strict constructionists instead of superlegislators. A nominee who is acceptable to the secular extremist/pro-abortion/far leftists is unacceptable to constitutionalists. And a President who was elected and re-elected pledged to nominate strict constructionists like Justices Antonin Scalia and Clarence Thomas to the bench should do so instead of break his promise in order to please the very people who frantically opposed him and lost.

But, Professor Tobias apparently did not want a reinvogorated Supreme Court to revisit its mistakes and correct them, so he ignored the Constitution's specification that the power to nominate is the President's alone and pressed for restricting it:

"Several procedures could facilitate the selection of a consensus nominee. One proposal floated by Senator Robert Byrd (D-W.Va.) and Senator John Warner (R-Va.) would have a bipartisan panel of senators choose a pool of acceptable candidates and send this group to President Bush. He could pick a nominee from that pool or forward someone of his own choosing."

Realizing that Presidents would be unlikely to let Senate moderates guide him in such a way, Professor Tobias pressed for consultation:

"Even if the president rejects this process or considers the candidates submitted unacceptable, Mr. Bush might secure an analogous result with consultation. If the chief executive were to broach informally possible nominees with Democrats before he formally nominates the candidates, as President Clinton did with Justices Ruth Bader Ginsburg and Stephen Breyer, Mr. Bush could institute smoother confirmation."

The Alito experience shows that President Bush's consultation with Senate Democrats did not facilitate Judge Alito's nomination. The contrast between the way Senate Republicans treated now Justice Ruth Bader Ginsburg (a former ACLU counsel with some very radical views, but, like Judge Alito, a brilliant attorney and very experienced federal appellate judge whose personal integrity was not in doubt) when she was a Supreme Court nominee with the way Senate Democrats, led by now former Owl Ted Kennedy, tried to "bork"Judge Alito is so stark that polls showed that Judge Alito's public support rose as a result of his Senate confirmation hearing while the opposition remained static.

In June of 2005 the Legal Affairs Debate Club revisited the subject of consensus judicial nominees with the ubiquitous Ms. Long and Stephen B. Presser, Raoul Berger Professor of Legal History at Northwestern University School of Law.

Ms. Long made the point missed during the first debate: A CONSENSUS NOMINEE IS A MISTAKE!

Focusing on what is right instead of what the left wants when the President is a conservative, Ms. Long declared: "There isn't a potential Supreme Court nominee on the planet (at least, one this President would nominate) who could get 100 votes in the Senate." And then explained why: "Because liberals have politicized the process and made it impossible for most Democratic Senators to support a nominee who shares the President's stated judicial philosophy: to apply the Constitution and federal laws as written rather than 'legislating from the bench.' The President's view, which will be shared by anyone he would nominate, is that courts are supposed to be neutral umpires of the law. We have lifetime appointments to the Supreme Court precisely to allow that function. The court is not supposed to function like President and the Congress, which properly implement policy choices because they are accountable to the people through elections. Federal judges are properly unaccountable to the people, but the flip side of that coin is that they should not be allowed to make laws only to decide cases." Ms. Long explained that President Bush would "capitulate" if he nominated a person "acceptable to the Left" instead of "keep[ing] his promise to nominate a Supreme Court Justice who embraces this judicial philosophy,"


Professor Presser concurred with Ms. Long: "To come up with a 'compromise' nominee who could get 100 votes would not be worth doing if it forced us to sacrifice these important principles, and, to come back to the point you made..., I'd rather see a nominee prevail by a slim majority, than give up on the rule of law and popular sovereignty."

Ms. Long provided a history lesson sorely needed (not by Professor Presser, but by Americans concerned with the state of ther government in general and their judiciary in particular):

"Before President Reagan's nomination of Judge Bork in 1987, the generally accepted criteria for Senate confirmation were legal and judicial qualifications and integrity. 'Judicial philosophy' was left to the President's discretion, as the Framers of the Constitution intended. The President, as the only elected representative of all Americans, is the one who should make that choice. It's what the Constitution empowers him, and the people elect him, to do.

"But the Democrats changed the ground rules for nominations with Judge Bork. The Left's continued failure to persuade the American people of the merits of their ideology, and their corresponding losses at the ballot box, has resulted in the Left being even more dependent on a compliant judiciary than it was 18 years ago. So liberal pressure groups, and the Senate Democrats they control, will oppose any nominee who shares the President's judicial philosophy."

The lady was prescient. Unfortunately.

Professor Presser, a sensible man, agreed "with almost every syllable...and, in particular, that since the Bork nomination the rules for who gets challenged and why have changed."

Professor Presser offered a fuller explanation:

"What's happened is that the 'legal realists,' working in the shadow of Oliver Wendell Holmes, Jr. have finally become the most influential judicial philosophers, and, as a result all academics, most lawyers, and certainly the leading Democratic Senators now all believe that law is just politics operating at a different level, judges have the freedom to implement the policies they please, and thus it's crucial to pick judges who will implement the rulings one prefers for the Democrats at this point rulings that favor affirmative action, abortion, and the removal of religion from the public square. The Republicans find themselves in the interesting position of being able to promote the policies they favor for example a color-blind constitution, allowing the states to regulate abortion, and undergirding law with religion by pushing for the appointment of judges who will more narrowly construe the constitution according to its original understanding (the traditional perspective argued in the Federalist and other works of the framers). Thus, for the Republicans, they can successfully argue that the[y] favor judges who don't make law, and still implement the policies they believe are appropriate." Professor Presser emphasized "that the question of the judiciary is so politicized that both sides can score points with their base (and encourage financial contributions from that base which is, after all, the lifeblood of politics at this point) by stoutly maintaining a no-compromise attitude on the judiciary."

The Alito experience illustrates that. Judge Alito was confirmed as a federal appellate judge unanimously. When his Supreme Court nomination finally is confirmed (and it will have taken much more time than the Ginsburg nomination), he may receive only one vote from a Senate Democrat, surely not more than a handful.

Any who are tempted to believe that President Bush should be intimidated and look for a "consensus" or "compromise" candidates if and when there is another Supreme Court vacancy should read this clear, concise and compelling call by Ms. Long for the President NOT to look for a "compromise" candidate, based on the tripartite requirements of principle, practicality, and politics:

"Reason (1): Principle. Seeking a 'consensus' candidate is not the right thing to do. It is not what the Constitution contemplates, in our system built on the consent of the governed. Majorities didn't elect George W. Bush and 55 Republican Senators to do that. For the President to choose a Justice on this basis would retroactively disenfranchise the voters in these elections. The people elected the President so that he would exercise his own judgment according to the criteria he stated in two elections. By definition, those will never be 'consensus' nominees. Justices Ginsburg and Breyer were not 'consensus' nominees, nor should any Republican nominees be particularly when Republicans control the Senate, for heaven's sake.

"Reason (2): Practicality. Appeasement never works. A 'consensus' nominee would not, as one of the liberal Debate Club participants previously suggested in this space, 'help move the Senate back from the brink, restoring a measure of comity to the chamber.' The atmosphere in Congress, we hear these days, is as acrimonious as it's ever been in history. I think it's pretty clear that the reason for this is that Democrats and left-wing groups are becoming more and more vicious the more they lose elections. Appeasing that group which, due to the unpopularity of its agenda, comprises a minority in the Senate is not a recipe for restoring civility. The ones who made the nomination process uncivilized to begin with are the ones who can and should return it to civility. Feed the beast, and it will only growl for more.

"Reason (3): Politics. For the President to do anything other than putting up the strongest nominee would be seen as capitulation to Harry Reid. Americans elected the President to pick Justices with strong legal credentials, outstanding judicial experience, and a demonstrated commitment to uphold the rule of law and the limited role of the judiciary. If and when he is faced with a vacancy on the Supreme Court, for the President to pick anyone other than the best person for the job would be a disaster of historic proportions. Choosing a strong nominee to help protect the Constitution and the rule of law for the next generation would strengthen the President now and ensure his legacy. Every great act entails some risk. But the President must not listen to the voice of doubt whispering that a 'consensus' nominee is the remedy to the horrendous treatment of John Bolton and falling 'popularity' polls. There is great value in standing up for what is right political and otherwise. Now is not the time to go wobbly."

Wobbly would be woeful. And wicked.

© Michael Gaynor

Comments feature added August 14, 2011

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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