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

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.

Filibusters Aren't the Ultimate Answer

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 because I believe (as some apparently do) that the Senate rules provisions for filibusters are unconstitutional - they are not.

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.

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.

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.

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.

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.

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.

It's the Elections, Stupid, And Hearings Should Anticipate That

Senator Obama went on to suggest - also correctly, in my view -- that the only real way to change things as they currently stand is to convince the American people - at the ballot box - that conservative legal values are not the ones they should embrace or the ones to which they should aspire. As Obama put it: "There's one way to guarantee that judges who are appointed to the Supreme Court are judges that reflect our values. And that is to win elections."

With this in mind, Senators skeptical of Alito's judicial philosophy should have been thinking of the confirmation hearings as part of the 2006 election campaign. They should have used the platform they had been given to help educate Americans about what judicial "conservatism" or judicial "liberalism" really means in their daily lives.

I have argued at length, in a series of columns for this site and elsewhere, that the only way to really undertake such an education in a confirmation hearing is to get high Court nominees to engage in a substantive discussion of their present views about past Supreme Court cases of moment.

Chief Justice Roberts and Justice Alito often resisted such case-specific queries. Still, I think some minimal progress was made by the Senate toward establishing that such questions can be intelligently posed and responsibly answered.

The Alito Hearings Did Provide Some Useful Information for the Electorate

Importantly, Justice Alito did during his hearings state his tentative positions on a number of important current legal questions, questions that are likely to arise before the Court during his tenure. As I listened to the Alito hearings, I took him to have taken the following current positions, among others:

(1) He has no quarrel with, and considers as settled, the so-called "one-person, one-vote" principle the Supreme Court has found in the equal protection idea, at least if the principle is applied with a bit of flexibility;

(2) He believes foreign materials such as rulings from courts abroad are unhelpful and inappropriate sources for interpreting our Constitution;

(3) He thinks Justice Jackson's Youngstown framework for evaluating claims of executive power, vague as it is, does provide the starting point he would use to decide questions of executive power, even executive power relating to foreign affairs;

(4) He deems the Griswold and Eisenstadt cases, protecting, access by married and unmarried couples, respectively, to contraception were decided correctly;

(5) In his current view, the South Dakota v. Dole case lays out the right questions to ask when it comes to the conditions Congress may impose on states that receive federal funding;

(6) He thinks the Morrison v. Olson case is "resounding" in its rejection of the so-called unitary executive theory, according to which the President must have control over all persons who exercise federal executive power; and

(7) He believes, based on personal experience, that diversity is a "compelling interest" for higher education to pursue, putting aside whether particular race-based plans are a permissible way to pursue it.

Of course, Alito absolutely refused to tip his present hand at all as to:

(1) Whether the Roe and Casey abortion decisions are "well-settled" precedent;

(2) Whether he would reconsider Kelo v. New London (the economic redevelopment Takings case from last Term that got so much press);

(3) What, if anything, constrains Congress from stripping the Supreme Court's jurisdiction in any particular class of cases;

(4) What, if any, non-enumerated executive powers on the part of the President exist inherently; and

(5) Whether persons born in the United States to parents who are here unlawfully could be denied citizenship under the 14th Amendment.

So, as I have argued many times, certainly there is a long way to go before nominees are providing all the specifics of their current legal views to which the Senate, and the voting public, are entitled. But a glass one-quarter full is better than one that it completely empty.

Indeed, as fellow FindLaw columnist Edward Lazarus pointed out a few weeks ago in his column, "it is significant that" some legal rollbacks conservatives seek "are sufficiently unpopular with the public at large that no candidate for the Supreme Court can openly endorse them. Indeed, nominees have to explicitly repudiate much of the [extreme] right-wing legal agenda, or else risk Senate rejection."

Because I think Lazarus is right here - that the hearings did unearth some specific information indicating current limits on the conservative zeal of both Chief Justice Roberts and Justice Alito - I disagree with Senator Joseph Biden's (D-Del.) understandable but overstated suggestion to the press that the Senate confirmation hearing have become completely useless and perhaps ought to be abolished.

Instead, I would say the hearings for Alito were modestly useful, but that the hearings process needs to move much farther in the direction of substantive specific discussions of seminal cases.

We Should Encourage, Not Discourage, More Answers from Nominees

One point on which I do not fully agree with Lazarus -- even as I am sympathetic to his desire - is his suggestion that Chief Justice Roberts and Justice Alito should, in their decisions as Justices, remain true to the tempered positions they advanced in the hearings. As Lazarus puts his point:

If Roberts or Alito depart sharply from the image they projected during the Senate hearings, they will have made a mockery of the whole confirmation process, and thus of the right of both the Senate and the American people to know who they will really be getting. . . .It will be [terrible] if either Roberts or Alito, by their actions on the Court, suggest that the hearings are not merely an exercise in minimal disclosure, but also in outright prevarication. . . . Against this backdrop, it becomes all the more imperative that Roberts and Alito stay true to the moderate, open-minded conservatism of their Senate testimony and show the nation that they were frank and truthful in their hearings.

I well understand why it is important that nominees be "frank and truthful" in their hearings. But I don't believe we can or should measure nominee honesty by reference to what a Justice's voting pattern is after confirmation. Indeed, I think such an approach will serve only to bolster the arguments that nominees currently make about why they cannot answer specific questions in the hearings.

The most common objection to case-specific Senate queries is the idea that a nominee would be "prejudging" or "committing" to positions in a way that would be inconsistent with the role of a judge. The powerful response to this objection is that sharing one's current views does not constitute a commitment at all - that as long as a judge is free to change his mind later on, there is no compromise of judicial independence or integrity.

But if a judge feels constrained to vote in accordance with the views he expressed at his confirmation hearing -- even if he has changed his mind in the meanwhile -- in order to deflect charges of "prevarication," then the hearings questions and answers really will have the effect of compromising post-confirmation judicial independence.

Nominees should answer Senate questions truthfully and fully because they are honorable people and because they are being considered for jobs of immense public trust. But openly suspecting them of lying if they later change their minds will have the effect, I fear, of making the hearings even less informative. And that would be moving in precisely the wrong direction.