At various times in history, members of the U.S. Senate have adopted one of three positions with respect to presidential nominees for the federal judiciary:
1. The blank check: A senator should vote to confirm anyone the president chooses.
2. The competence and character test: A senator should vote to confirm anyone the president chooses, unless the nominee is incompetent or suffers from a fatal character flaw (as demonstrated, for example, by corruption).
3. The out-of-the-mainstream test: A senator should vote to confirm anyone the president chooses, unless the nominee’s views are unacceptably extreme.
Under Barack Obama’s administration, influential Senate Republicans seem to have adopted a fourth view:
4. The disagreement test: If a senator strongly disagrees with a view expressed by a nominee, at any point in that nominee’s career, he should support a filibuster against the president’s choice.
As it is currently being used, the disagreement test is unprecedented. True, the Senate has sometimes played an aggressive role in the confirmation process. And true, Senate Democrats ramped up their scrutiny under President George W. Bush. But the disagreement test is now going beyond anything we have seen before, and it is producing an increasingly unworkable situation.
To see the problem, we need to explore some basic principles about Senate confirmation.
The same provisions of the Constitution govern both executive and judicial nominees. But as a matter of structure and logic, it is usually agreed that the Senate should give the president special deference when he is appointing members of his own staff. The heads of the Cabinet departments work for him; he oversees their decisions.
No one denies that the Senate is entitled to consider whether executive-branch nominees are competent and honest. But even here, the Senate must be circumspect and careful. Its authority shouldn’t be turned into a license to conduct an unbounded and humiliating Life Audit, in which a nominee is subjected to limitless economic and personal inquiries that would put the most obsessive Internal Revenue Service employee (or divorce lawyer) to shame.
And because life is long and because human beings can be spirited, it makes no sense to scour every statement ever made by nominees to ensure that they have never said anything that counts as controversial or highly provocative. For executive branch nominees, the president deserves a lot of deference.
By contrast, both Democrats and Republicans have rightly insisted that because judges have life tenure and don’t work for the president, the Senate is entitled to give greater scrutiny to judicial nominees. Notwithstanding Republican grumbling during the administration of George W. Bush, the Senate may certainly investigate the views and likely votes of such nominees.
Suppose one of them believes that the Constitution permits school segregation, or gives limitless authority to the president, or forbids the minimum wage. These views are unquestionably out of the mainstream, and no member of the Supreme Court supports any of them (thank goodness). True, the Senate shouldn’t disqualify people who have written provocatively, but positions of this kind would be a legitimate basis for hesitation.
The disagreement test is an altogether different matter. Consider the case of District Court nominee Elissa Cadish, who asked the president to withdraw her nomination this month.
Her appointment was held up by Republican Senator Dean Heller of Nevada, who opposed her because she said in 2008 that she didn’t believe that the Second Amendment created an individual right to bear arms ― but promptly added, “I will enforce the laws as they exist.”
When she made this statement, the law was as yet unsettled, and four justices on the Supreme Court ― just one short of a majority ― ultimately agreed with her conclusion. Are Senate Republicans really entitled to reject a nominee because she doesn’t agree with Justice Antonin Scalia?
Or consider Caitlin Halligan, the highly qualified nominee for the U.S. Court of Appeals for the District of Columbia Circuit. Halligan was subject to a successful Republican filibuster last week. Her sin? She participated in a well-publicized lawsuit against gun manufacturers on behalf of New York City.
Whatever the merits of that particular lawsuit, it can’t be taken as disqualifying for appointment to the federal bench. Over the course of a decade or more, any good lawyer is likely to represent a controversial client or two; if she is involved in litigation, she will sometimes take a position with which a lot of reasonable people will disagree. Strong disagreement with a lawyer’s client, or with her litigating position, isn’t usually a legitimate basis for a filibuster.
It is important to stress that Senate Democrats deserve a fair share of the blame for this dismal situation. In the 1990s, their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test. But we are in the midst of something genuinely novel: an abuse of the Senate’s constitutional authority that is damaging, at the same time, all three branches of the national government.
By Cass R. Sunstein
Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a Bloomberg View columnist. He is the co-author of “Nudge” and author of “Simpler: The Future of Government,” to be published in April. The opinions expressed are his own. ― Ed.
