How to Fix the Supreme Court Confirmation Mess

With the mid-term elections now concluded, it is clear that the conflict over the nomination of Brett Kavanaugh did indeed help Republicans in red states. Democrats who voted against Kavanaugh all underperformed. Joe Manchin, who voted in favor retained his seat.

How large the Supreme Court confirmation process now looms in the affairs of the nation cannot be overstated. Nor, however, can this fact: the process is broken.

The wreckage benefited one party this time over the other, but it is clearly in the long-term interest of both parties that the process be reformed. Perhaps now is the time that a bipartisan solution can be found.

That solution, I believe, would have two components—one political, the other procedural.

Politically, Americans should re-examine what they expect from senators exercising their constitutional responsibility to advise and consent to Supreme Court nominations. Procedurally, the Senate should give careful consideration to adopting new rules that would create a fair process for future confirmations.

Let’s start with the question of what Americans expect of their senators in providing advice and consent.

Much of the current confirmation process amounts to repetitive efforts to pin down nominees on specific issues, to surmise what their opinions might be and to attack their lack of candor when their responses are elusive. Nominees in fact often are elusive, in part because it’s safer. At most, nominees sometimes discuss their general approaches to jurisprudence: whether they interpret the Constitution as originally understood by the Framers or whether they see it as a “living” document, adjustable to changing societal norms.

But this broad issue of judicial philosophy should not be the Senate’s to decide. It is and should be a subject of public debate in presidential campaigns. The people understand that when they elect a Democratic president, they are choosing progressive justices. When they elect a Republican president, they are choosing conservative justices. Senators should not substitute their own views on judicial philosophy for the vote of the people in the last presidential election. Therefore, the Senate’s criteria for considering nominees for the Supreme Court should revert to the norm, exemplified by the confirmation votes for conservative Antonin Scalia—98-0—and liberal Ruth Bader Ginsburg—96-3. In both cases, the Senate’s consideration was limited to the nominee’s personal qualities including ability, character and experience.

Regarding the Senate’s adoption of new rules, the first important point to make is that the Constitution does not define how that body is supposed to exercise its authority to advise and consent. The Senate, therefore—and the Senate alone—has the power to establish its own rules. That doesn’t mean, however, that the Senate can’t ask for help. The Senate should appoint a commission comprising distinguished Americans to formulate recommendations. Using that approach, the Senate would stand to gain valuable input and generate greater public support for its new rules.

Whatever new rules are adopted, they should provide certainty and fairness to both political parties and basic due process for nominees, especially those whose personal reputations are being attacked. Some possibilities, not all of them original to me, include:

These are only some initial suggestions of the kind of reforms that might be considered. More important than these specific ideas is to build on the bipartisan disgust with the current process for acting on Supreme Court nominations and to work toward bipartisan ways to make things better.