THE SENATE WINS AN EARLY ROUND IN THE JUDICIAL APPOINTMENTS TOURNAMENT - THE PICKERING CASE

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Mar. 22, 2002

If you switched channels last weekend from March Madness to the Sunday talk shows, you know that NCAA basketball isn't the only game commentators were analyzing. The contest between Republican President George Bush and the Democrat‑controlled Senate over federal judicial appointments may not be generating many office pools, but it nonetheless should be of keen interest to American viewers and voters.

President Bush cried foul last week as the Senate Judiciary Committee voted 10‑9 (along party lines) not to approve Charles Pickering Sr. of Mississippi for a seat on the United States Court of Appeals for the Fifth Circuit - or even to send his nomination for a vote on the floor of the entire Senate without a Committee endorsement.

President Bush's and Republican Senators' Claims of Democratic Foul Play

The President charged Democrats with violating the rules in a number of ways. He argued as follows:

Under our Constitution, the President has the right and responsibility to nominate qualified judges and the legislative branch has the responsibility to vote on them in a fair and timely manner. . . . Pickering is a respected and well‑qualified nominee who was unanimously confirmed 12 years ago to the district bench. His nomination deserves a full vote, a vote in the full Senate. . . . We now face a [disturbing] situation in which a handful of United States Senators on one committee have made it clear that they will block nominees, even highly qualified, well‑respected nominees, who do not share the Senators' views of the bench. They seek to undermine the nominations of candidates who agree with my [judicial] philosophy.

Republican Senators had some heated comments to offer, as well. Orrin Hatch, ranking Republican on the Committee, said Democrats had engaged in "egregious smear tactics" concerning Pickering's record on racial and reproductive issues, and had rejected a "truly righteous and decent man." Senate Minority Leader Trent Lott, a close friend of Pickering's and a fellow Mississippian, explained the Committee's decision as political "payback" for actions taken by Republicans when Bill Clinton was President.

Did the Senate Really Break the Confirmation Process Rules?

Begin with the reasons why Democrats vetoed Pickering. President Bush accurately described many Democrats' motivations when he said Senators had rejected Pickering because Pickering didn't share their views of the federal bench, and instead agreed with Bush's opposing judicial philosophy.

But what is wrong with that? President Bush himself implicitly acknowledged that he selected Pickering in part because of Pickering's philosophy. And what's good for the President, in the process, ought to be good for the Senate as well.

After all, as we explained in our first column on the appointments game, if the President who nominates a candidate may properly take account of the nominee's judicial philosophy and proclivities, the Senate may likewise properly consider these same factors in discharging its "advice and consent" duties. The Constitution envisions the Senate as the President's appointments partner, not his rubber stamp.

And so, we suspect, does the American voting public when it goes to the polls to elect Senators and Presidents. One way to read the agonizingly close election of 2000 is that voters gave neither party a ringing mandate to shape the lower federal courts - or the Supreme Court - in its own ideological image.

An Already-Politicized Process That Should Be Overtly Focussed on Judicial Philosophy

Some might argue that candid consideration of judicial philosophy risks politicizing the process but--news flash!--the process is already politicized. And the Founders could hardly have expected otherwise when they chose to give the task of judicial appointments to political actors (as opposed, say, to judges themselves or to a civil service bureaucracy).

Indeed, we think overt consideration of judicial philosophy is a more principled form of politics than the alternative - the politics of personal attack. This kind of politics will inevitably thrive if Senators feel that they can vote against a nominee whose philosophy they reject only if they can somehow prove that the nominee is personally or professionally unfit.

In an ordinary nonjudicial election, one need not prove that a candidate is a knave or a fool to vote against him--it is enough that one strongly disagrees with the candidate's philosophy and strongly prefers some other candidate with a more attractive vision. Judicial nominations should be seen in the same light. No one has a personal vested right to serve as a federal judge once nominated by the President. Accordingly, the Senate ought to be -- and is -- perfectly free to just say no to any nominee on substantive grounds.

Thus, the Senate should not focus exclusively on personal traits. It should not limit itself to whether the nominee is a "righteous and decent" person; instead it should openly inquire whether the nominee's qualities - including his judicial philosophies - would contribute beneficially to the court on which he is nominated to serve.

Judges Have No Right to Be Elevated to a Higher Court

Nor does the fact that Judge Pickering was confirmed unanimously by the Senate twelve years ago to serve on the federal trial bench imply--as the President's remarks tried to imply--that the Committee acted improperly last week. Those twelve years of judging provided Senators much more information about the kind of jurist Judge Pickering is; some Senators believed that Pickering's record on the district court was at best mediocre.

Also, the federal trial bench is very different than the federal appellate bench. The two jobs require different skills, and there are many competent trial judges who do not, when elevated to the Court of Appeals, do nearly as well.

More fundamentally, there is simply no legal entitlement to be promoted within the federal judiciary--even if you are best friends with the Senate Minority Leader, father of a sitting Congressman, and the first choice of the President.

Nor Do Judges Have A Right to Have Their Nomination Considered by the Full Senate

But even if there is no right to be elevated to a higher court, is there at least a right to be voted on by the full Senate? Constitutionally, the answer is no.

The Constitution's words nowhere require that the full Senate act - in any way at all - on any nomination by the President. That is especially significant because - as Professor Gary Lawson (who helped found the Federalist Society and who clerked for Justice Antonin Scalia) has pointed out in a 1999 Northwestern Law Review article - the Constitution does, in contrast, contain other provisions requiring the Congress to take formal action when certain triggering events occur.

For example, when two-thirds of the state legislatures so request, Congress MUST call a convention for considering amendments to the Constitution. But provisions like these, Lawson powerfully argues, are exceptions to the general rule that each house of Congress can set its own agenda for action or inaction. And there is no textual or structural requirement in the Constitution that the Senate do anything affirmative in the "advice and consent"setting.

To be sure, as a matter of courtesy and Senate tradition, the Senate has sometimes allowed major Presidential nominations to reach the full Senate even without the endorsement of the Senate Judiciary Committee. But this is not because of anything in the Constitution.

The Traditional Role of Senate Committees As Gatekeepers

In general, the gatekeeping power of Senate Committees is among the Senate's deepest traditions. Over the last two centuries, many of the most important decisions made by the Senate have been finally made by a Committee with jurisdiction over the subject. There is nothing in the Constitution that forbids this strong Committee system - either in general, or in the specific context of judicial appointments.

Moreover, changing this system would require radically restructuring the Senate. As we have explained earlier, if the 100‑person Senate is to act effectively, it will need to rely on an internal specialization of labor, in which committee members develop substantive areas of expertise to which other Senators largely defer.

Even when it comes to impeaching lower federal judges, the Supreme Court, in Nixon v. United States, has upheld the constitutionality of the Senate practice whereby a Committee does most of the heavy lifting - that is, the Committee hears and reviews all the evidence against the impeached person and makes a recommendation. Surely a judge who is being impeached and may lose his job altogether has a stronger claim to full Senatorial process than does a district court judge with life tenure who is simply losing out on a possible promotion.

Precedents of Republican Stonewalling From the Clinton Years

Speaking of impeachment, it's worth remembering that Republicans used rather aggressive tactics during the Clinton Presidency - including the stonewalling of various judicial nominees, and the harsh treatment of Clinton himself during the presidential impeachment.

If Judge Pickering's rejection is indeed, as Senator Lott suggests, a kind of payback for what Republicans did during the Clinton years, at least it is a poetically precise and proportionate payback--tit for tat. As Senator Hatch has himself conceded, the Republican‑controlled Senate failed to process three of President Clinton's nominations to the very same Court to which Pickering was nominated - the Fifth Circuit Court of Appeals.

Each of these three Clinton nominees met President Bush's test of good credentials and character. Had any of them been confirmed, the balance on the Fifth Circuit might be significantly different today, and the case for Judge Pickering's elevation might be different, from the perspective of ideological diversity at least.

In short, the Democrats played hard in the Pickering matter, but they played fair--at least, as fair as the Republicans did when they controlled the Senate and faced a President of the other party. But the Pickering nomination is only one of the early matches in a vast appointments tournament, whose later rounds may feature a Supreme Court vacancy some time before the next presidential election. The really exciting stuff is yet to come.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

Correction: The Amars would like to note a small correction to their previous column. In discussing the case of Winston v. Lee, they mentioned that the case involved the retrieval of a bullet from a person's neck. In fact, it was the person's chest. The error has been corrected on the FindLaw site.

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