{"id":52835,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/reflections-on-the-supreme-court-confirmation-process-after-roberts-and-alito.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"reflections-on-the-supreme-court-confirmation-process-after-roberts-and-alito","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/reflections-on-the-supreme-court-confirmation-process-after-roberts-and-alito.html","title":{"rendered":"Reflections on The Supreme Court Confirmation Process After Roberts and Alito"},"content":{"rendered":"\n
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Reflections on The Supreme Court Confirmation Process After Roberts and Alito:
Its Virtues and Flaws, and Why Senator Obama’s Take is the Right One<\/span><\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Feb. 03, 2006<\/td>\n\n <\/tr>\n <\/table>\n

Within the short span of about four months, the nation has completed the unusual task of filling two Supreme Court vacancies. In today’s column, I offer a few reflections on what works – and what doesn’t – in the process, and how we can improve.<\/p>

Filibusters Aren’t the Ultimate Answer <\/b><\/p> \n\n\n

For starters, I tend to agree with Illinois Democratic Senator Barack Obama’s assessment this week that “there is an over-reliance on the part of Democrats [on] procedural maneuvers” like the filibuster, a device that requires 60 votes in the Senate to end debate. I say this not<\/u> because I believe (as some apparently do) that the Senate rules provisions for filibusters are unconstitutional – they are not.<\/p>

Nor do I think that the filibuster device is inherently “undemocratic” insofar as it requires more than a majority to bring a matter to a floor vote. Sometimes supermajority rules are defensible if the simple majority that created them decide to use and continue them.<\/p>

Instead, my objection to the filibuster in this setting is a practical one; I simply think that the filibuster device, which throughout American history has often been deployed for bad purposes like stymieing civil rights legislation, is unlikely to work to block Supreme Court nominees today.<\/p>

Consider the Democrats’ attempted filibuster with respect to Justice Alito, which failed miserably. Nineteen Democrats, most of whom opposed Alito’s confirmation on the merits, joined with Republicans to provide 72 votes – 12 more than needed – to end debate and bring the nomination to a floor vote. <\/p>

One reason the Alito filibuster flopped is that many Democratic Senators had already committed themselves not to filibuster except when a nominee presented “extraordinary circumstances.” Although the meaning of this term is obviously uncertain and varies from Senator to Senator, the decision of moderate Democrats to set the bar so high all but doomed any filibuster effort before it started.<\/p>

Was the Alito choice “extraordinary?” I think it’s hard to make the case. His Third Circuit colleagues all praised his temperament and abilities. Many of us in the academy (myself included) praised his intellect and doctrinal sophistication. And many — perhaps most — Americans seemed to agree with the bulk of his lower court rulings, as those rulings were described by the press and politicians.<\/p>

Recall as well that the Bush Administration and the Republican party campaigned – and won a Presidential and Senate election – on the idea that judges “in the mold” of Justices Scalia and Thomas ought to be selected to the nation’s high Court. In light of this campaign and electoral victory, it’s hard to argue with a straight face that someone like Alito is “outside the mainstream” or “extraordinary.” The reality is that the modern judicial “mainstream” is quite conservative, and that these days being a legal conservative is quite ordinary.<\/p> Column continues below \u2193<\/a>\n\n