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:
- A calendar for nominations in presidential election years. The purpose would be to provide a standard procedure that would avert controversies such as Majority Leader Mitch McConnell’s ad hoc refusal to act on the Merrick Garland nomination in 2016. As an example, the calendar might provide that the Senate must act on nominations received before July 1 but will not act on nominations received after that date.
- A timetable for considering information about nominees and voting on nominations. In the cases of Clarence Thomas and Brett Kavanaugh, “bombshell” allegations became public only days before scheduled Senate votes. To avoid surprise, there should be a cutoff date after which the Senate will not hold further hearings to consider additional information about the nominee.
- A nonpartisan, professional staff, independent of Executive Branch direction, to conduct all background investigations once the nomination and initial FBI background report are received from the President.
- Due process protections for nominees whose reputations are attacked. A frequent refrain in the Kavanaugh/Blasey Ford hearing was that it was a “job interview.” It was much more than that. Most nominees, especially for positions as exalted as the Supreme Court, have spent lifetimes building reputations that they value more highly than any possession or position. In any legal proceeding, civil or criminal, defendants are entitled to due process of law. In the Judiciary Committee, nominees receive no process protections at all. They are hauled before a national audience in what is accurately characterized as a “circus”: 21 Senators taking turns making partisan points. Unlike parties in court proceedings, nominees are not represented by counsel, nor are they allowed to confront their accusers. The Senate is not a court of law and confirmations are not legal proceedings, but fundamental fairness requires the ability of nominees to defend themselves.
- When charges are made against a nominee’s character, a non-public forum should be formed to investigate them. Rather than bring its circus to town, the Senate could convene a panel of three retired jurists to look into the allegations, reach conclusions and forward its findings confidentially to the Judiciary Committee. The Senate would retain sole power to accept or reject the panel’s finding, but the fact finding would be conducted by the panel. This approach would better protect the privacy and reputations of accusers, the reputations of nominees and public confidence in the Senate itself.
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.