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April 17th, 2010

Take the Gloves Off

SUPREME-COURT1Written by Nathan Tucker

In the wake of Justice John Paul Steven’s retirement announcement last week, Washington has engaged in its favorite parlor game of guessing who President Obama will announce as his replacement.  What should not be lost in such rampant speculation, however, is that how the Republicans treat the nominee is nearly as important, and perhaps more so, than the nominee him/herself.

Under the Constitution, the president has the power to appoint judges to the federal courts with the “advice and consent of the Senate.”  Some will argue that “advice and consent” simply means that presidents have a constitutional prerogative to have their nominees rubberstamped by the Senate unless they are unqualified intellectually or ethically.

But simply because the president has the constitutional duty to nominate an individual to the court doesn’t mean that the Senate has no role to play in the confirmation process.  The Senate has, since it voted down George Washington’s nomination of John Rutledge in 1975, used its constitutionally mandated role of “advcse and consent” to reject nominees on ideological grounds.

Nor is there any basis for the argument that a nominee deserves an up-or-down vote by the Senate.  Not only is there no language in the Constitution requiring it, but throughout its history the Senate has at times refused to bring a nominee up for a vote.  Of the thirty-four nominees to the Supreme Court that were not confirmed by the Senate, twenty-three were either withdrawn by the President or a vote on their nomination never made it to the Senate floor.

President Obama clearly understands that the Senate’s role in confirmation hearings is not to simply rubber-stamp a president’s nominee.  On Meet the Press in October 2006, he stated that it is acceptable not to vote for a nominee “because you’re not sure that their views on the Constitution comport with yours.”

He even joined the (unsuccessful) Democratic effort to block Judge Samuel Alito’s confirmation to the Supreme Court in 2006 with a filibuster, arguing that, even though “I have no doubt that Judge Alito has the training and qualifications necessary to serve,” he was “deeply troubled” because as a federal judge Alito “constantly side[d] on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.”

Obama’s statements not only reveal his understanding of “advice and consent,” but also what is at stake in the confirmation hearings.  This is a power struggle over the meaning of the Constitution—either judges are bound by the text and original understanding of the document, or they are free to be guided by their empathy and sense of justice as they engage in “goal oriented” jurisprudence.

Democrats have long understood that what is at stake is not just abstract ideology but political power—the ability to win in the courts what they can’t at the ballot box.  That is why, just forty-five minutes after President Reagan nominated Judge Robert Bork to the Supreme Court in 1987, Senator Ted Kennedy took to the Senate floor and lambasted what he called “Robert Bork’s America.”

That is why, in 1991, Senate Democrats put Judge Clarence Thomas through a “high-tech lynching” when he was nominated to the high court by President George H.W. Bush.  That is why Senate Democrats filibustered President George W. Bush’s nomination of Miguel Estrada to the D.C. Circuit Court of Appeals in 2001, and why they did the same thing with Judge Janice Rogers Brown in 2005.

It is time for the conservatives to take off the gloves and join the fray because the battle will not be won simply by being satisfied with nominees who liberals assure us are in the “mainstream.”  To ensure justices who are bound by the Constitution, ideology must be considered fair game during confirmation hearings and a filibuster must always remain a frequent option.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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