What Are the Rules and Standards In the Judicial Appointments Game? With a Supreme Court Nomination on the Horizon, the Stakes Are High

This is an updated version of a two-part series on the appointments process that was originally posted in January 2002. - Ed.

Citizens need to understand the basic ground rules of the appointments game. (By calling appointments a "game," we seek not to trivialize the principals and principles involved, but rather to highlight the range of permissible moves and countermoves that give the appointments process a coherent structure.)

These ground rules--deduced from the Constitution's letter and spirit, and from the institutional practices that have emerged over the years--define what is fair play and what is out of bounds.

Rule One: Appointments Are Not the Only Game in Town

The basic constitutional text governing appointments appears in Article II, Section 2 of the Constitution, which provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" various high-level executive and judicial officers.

This basic text does not exist in a vacuum. Rather, it is nested in a Constitution that has much to say about Presidents and Senators in other contexts, including legislation, treatymaking, and constitutional amendment.

The appointments game is thus one of many interrelated games governed by the Constitution. Just as a team that overuses its ace reliever in game 1 of the World Series might end up losing later games as a result, so too an overly aggressive President might end up winning an appointments game only to lose more important legislative games down the road.

For example, if President Bush heeds the advice of many and nominates someone many Democratic Senators can support, then there may be no need to test the contours of the cease-fire concerning the use of the filibuster (a topic about which one of us has written) reached in the Senate this spring.

In addition, a moderate appointment now may help build a spirit of bipartisanship and increase Republican majorities in the Congress after the 2006 election. And that, in turn, may give the President more leverage not only in subsequent Supreme Court appointments he is likely to make, but also on his domestic legislative agenda concerning things like energy policy and even social security reform.

Rule Two: Executive and Judicial Appointments are Very Different Ballgames

The language of Article II, read in isolation, might seem to suggest that all major appointments are identical, governed by a uniform "advice and consent" standard. But here too, it makes sense to construe the clause in light of the rest of the Constitution, and traditional institutional practice.

The rest of the Constitution identifies key differences between executive officers serving the President in Article II, and judicial officers independent of the President in Article III:

Executive officers answer to the President (quite literally, in the Article II, section 2 Opinions Clause) and will typically leave when he leaves. A President is generally entitled to have his branch filled with his people, whom he directly oversees. If these underlings misbehave, voters can hold the President responsible.

Federal judges (especially Supreme Court Justices) are different. They do not answer directly to the President. They are not part of his Administration. When he leaves his office, they will stay in theirs.

Because of these differences, the Senate has always given a President more leeway in picking his Cabinet than in picking Justices. The pattern began in 1795 when the Senate rejected George Washington's pick for Chief Justice, John Rutledge. By 1830, the Senate had stymied three Supreme Court nominees, but had yet to nix any Cabinet nominees.

Since 1960, although Presidents have nominated roughly ten times as many persons to the Cabinet as to the Supreme Court, there have actually been fewer failed Cabinet nominations than failed Court nominations. (Compare John Tower, Zoe Baird, and Linda Chavez on the Cabinet side with Abe Fortas, Clement Haynsworth, G. Harrold Carswell, Robert Bork, and Douglas Ginsburg on the Court side.)

Rule Three: The Foul Lines are the Same for Both Sides

If, as we argue below, the President may properly consider a judicial candidate's overall ideology and predicted performance in office in deciding whom to nominate, the Senate may likewise properly consider these factors in deciding whether to confirm.

Nothing in the Constitution's text or structure says that the President may consider judicial ideology, while the Senate may consider only personal character and professional competence. In general, the Appointment Clause text envisions a partnership in which the President goes first and the Senate goes second, but both may consider the same general factors.

Elsewhere in the Constitution, the actor who goes second is generally entitled to consider the same things as the one who went first. In treatymaking, the Senate may weigh the same things as the President who proposed the treaty; in lawmaking, the President is free to veto a bill based on the same broad range of policy factors that the Congress considered when enacting it; and in the constitutional amendment process, the states acting at the end have the same broad discretion as the Congress acting at the beginning.

Institutional practice supports this reading of text and structure: Senators have often (sometimes openly, sometimes quietly) gone beyond nominees' character and credentials to consider judicial ideology and likely judicial voting patterns.

Rule Four: He Who Goes First Often Laughs Last

As with chess and tennis, the appointments game gives the first mover an advantage. The President defines the appointments agenda by going first, forcing the Senate to confront not merely an abstract ideology but an actual person who embodies that ideology. Voting down a real person may be harder than voting down an abstract idea or bill, especially if the person is exceptionally articulate or charming, or has a compelling biography.

Even if the Senate succeeds in defeating a nominee, there is no guarantee that next nominee will be better (from its perspective). The President may threaten to send up a second nominee who may be worse but harder to oppose, politically. (The President might be bluffing, but Senators cannot always be sure.)

If a President has a slight preference for Smith over Jones, that slight preference may suffice to give Smith the nomination. But if the Senate has a slight preference for Jones over Smith, they should hesitate before rejecting Smith; there is no guarantee that they will end up with Jones.

Rule Five: One Head Is Better than Two (or One Hundred)

The unity of the President - he or she is both a single person, and the unitary head of an entire branch of government -- gives him advantages.

Even if a single Senator resolves to vote against all nominees falling below the mark of excellence, she cannot be sure that her colleagues will be similarly resolute, or will share her rankings.

Indeed, while the President will typically choose a nominee that he considers best overall, there may be no single nominee that the Senate as a group considers superior to all rivals. Each Senator may have her favorite candidate, but the Senate as a whole may be unable to identify a clear favorite.

In addition, the President is the only actor with his eye on the entire package of appointments, involving nominees from every region and on every subject matter. He and his staff may easily meet with potential nominees behind closed doors; it is harder for the Senators as a group to do this.

Rule Six: Judicial Promises are Out of Bounds

Appointments--even to the judiciary--are part of a political process. In some European countries, judges are picked and promoted by fellow judges. In America, they are picked and promoted by politicians.

But once confirmed, federal judges are to be shielded from further dependence on the political branches. Thus, it is generally impermissible for politicians to seek promises from judicial nominees about how they will vote once confirmed. Such promises impermissibly leverage politics past the Article II appointments process into the actual Article III adjudication process, where it has no proper place.

Conversely, those who suggest that judicial ideology should play no role in appointments impermissibly seek to bleach politics out of a place where it does, indeed, constitutionally belong. Unlike the European model, the American model allows political leaders and voters to weigh more than technical legal competence and personal character in deciding who shall be our judges.

The proper line is one dividing predictions from promises. Presidents and Senators are free to base (and often have based) their decisions on the likely voting patterns of nominees, but may not extract (and typically have not tried to extract) pledges or promises. During the nomination and confirmation process, the Senate may question candidates about their past and current legal views - using specific examples to nail points down -- and the nominee should try to answer candidly; but once confirmed, judges must be free to change their minds when presented with sound legal arguments.

Though the line between prediction and promise is sound in theory, it may be difficult to honor in practice. Is the Senate really capable of having candid conversations about judicial ideology? How might such conversations best unfold? In the balance of this column, we offer some specific guidelines for Senators vetting judicial nominees.

The Need for Nuance: Different Questions and Judgments For Different Judicial Positions

Just as executive branch appointments differ from judicial ones, not all judicial appointments are the same. The qualities that make for a good trial judge, for example, often differ from the qualities needed on the Supreme Court.

The attributes most needed on a given court will also depend in part on who is already sitting on that court at the time a vacancy happens to open up. As Senator Charles Schumer has argued, Senators may properly consider not merely the credentials and ideology of the nominee before them, but also the desirable overall balance on the court in question.

Considerations like these may explain why many Senators who voted against Robert Bork's 1987 nomination to the Supreme Court had voted to support his nomination to the Court of Appeals of the District of Columbia Circuit some five years before. They also explain why--we suspect--these Senators likely would have been happy to confirm Bork again to this lower court had he stepped down and been renominated.

These Senators may have believed that Bork's brand of conservative strict construction would provide a good counterweight to the more freewheeling philosophy of some other D.C. Court of Appeals judges. But they may also have believed that it would, alongside the promotion of William Rehnquist to the position of Chief Justice and the appointment of Antonin Scalia, overrepresent one methodological approach on the Supreme Court at the expense of other legitimate judicial philosophies, thereby tilting the Court too far in one direction.

Nor is ideological balance the only kind to consider. Throughout American history, the Supreme Court and many lower courts have benefited from having judges drawn from diverse parts of the legal world -- the bench, the private bar, the government and the academy.

How, precisely, should the Senate canvass these varied legal experiences to assess what impact a nominee might have if confirmed? In a word, carefully - with due understanding of the way in which lawyers in today's world are often asked to play roles.

How Senators Should Evaluate Sitting Judges

Consider, first, nominees who are sitting judges. It might initially seem that the Senate's task here is easy: simply read a jurist's past decisions to glean her approach to judging and compare that approach to the Senate's own vision(s). But in fact, past decisions may not tell us much, and may indeed be misleading in what they do suggest.

For one thing, stare decisis -- the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid -- limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning deeply in conflict with the judge's own views.

Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent despite the judge's personal views may in fact illustrate a virtue, even as it is condemned during the confirmation process as a flaw.

Less obviously, some existing state court judges may simply not have had occasion to consider many of the kinds of federal questions that regularly confront federal courts. (Because certain federal questions can be easily litigated in federal court, they arise infrequently in state court; indeed, some federal issues, such as issues of federal criminal law, are almost never heard in state courts.)

Moreover, even state court judges' decisions as to open questions of state law may not tell us much that is helpful about their general judicial philosophy. State court judges are often elected and/or removable directly by the voters. For this reason, they may feel legitimate in exercising political discretion in deciding state cases, in a way they would not if confirmed to the life-tenured federal bench. Put another way, the philosophy they look to may, in part, be that of the voters.

Finally, even when we focus on the elevation of sitting federal judges, things are not as simple as one might expect given that these judges have already, in the past, survived one confirmation process. That is because the job of a federal district judge is significantly different from that of a federal appellate judge.

District court judges face tremendous time pressures and far larger dockets than appellate judges do. Often they confront emergency motions, or evidentiary and other legal questions that arise in the course of trials, that must be resolved immediately. As a result, district judges' consideration of complicated questions of law is often not as deliberate and thorough as may be ideal. A huge volume of decisions -- sometimes over a hundred per year -- inevitably will include a few missteps.

District judges know this. Accordingly, some district judges view their job as presenting difficult and open legal questions in a clear way for the appellate courts, and taking a good first stab at a right answer, but not much more than that. That should be remembered, and taken account of, in the confirmation process.

How Senators Should Evaluate Nominees From Private Practice

How about nominees who are drawn from private practice? Positions a lawyer has taken in court representing clients may not always tell us everything about the lawyer's own views of the law, because a lawyer ordinarily has an ethical duty to make all plausible legal arguments (whether he personally embraces them or not) on behalf of a client. But a nominee's conduct as a private lawyer can tell us what kinds of legal positions she thinks are plausible under the law as it now exists, or is likely to exist.

Also, a lawyer's decision to take a case that she knows will involve the making of certain kinds of arguments may be quite informative. There is no requirement that a private lawyer accept every client, and in many situations an attorney could, if she so chose, agree to represent a client only on the condition that certain kinds of arguments not be made.

Some courts may be unwilling to enforce some limitations on representation that an attorney imposes (seeing these limitations as in conflict with, for instance, the attorney's duty to represent her client zealously). Moreover, Senators should tread carefully here, since asking, for example, what arguments a client requested that the attorney make might reveal attorney-client communications. But there is at least some room for questioning here -- particularly about the decision to take a particular case.

For example, consider the case of a nominee who is a private lawyer who has represented the tobacco industry and, in the course of that representation, makes First Amendment arguments against tobacco advertising restrictions. It is fair to ask whether the voluntary decision to accept the case says something about the nominee's vision of free speech, and about his ethical vision more generally.

Of course, even here, Senators must be aware of nuances in roles. A young associate at a law firm may not have much say about the cases to which he is assigned, and no say at all with respect to the ones his firm accepts.

Just as a lower court judge can sometimes point to clear Supreme Court guidance as an explanation for an otherwise troubling opinion, so too a junior lawyer may be able to point to a senior partner who is calling the shots. But this is not always true. A young associate who joins a firm known for its tobacco defense work should be able to be held accountable for it by those Senators who disapprove of such work. Similarly, an associate who joins a firm that does some tobacco defense work, but has the choice to opt out, even at a cost to his own career, should be held accountable for doing the work.

How Senators Should Evaluate Nominees From Government Practice

Nuanced distinctions like these also apply when we look at nominees who have been government attorneys. Unlike private lawyers, government attorneys do not choose their clients, but they do often have discretion to define their client's interests, and are also ethically bound to do justice.

The discretion enjoyed by government attorneys, though, may vary because different departments within government play different roles. An attorney prosecuting crimes for the Criminal Division of Department of Justice, for instance, has less leeway to stake out his own views of the law than does an attorney in the Office of Legal Counsel, whose job is not so much to win cases but rather to figure out what the law is or should be.

And even within a department, some lawyers will have much more power to dictate positions and set agendas -- and thus will more properly be required to explain those positions and agendas -- than others. For example, arguments a Solicitor General advances before the Supreme Court are rarely dictated by anything other than the SG's sense of what makes the most legal sense for the United States, whereas deputy SGs have much less decisionmaking authority, and assistant SGs, less still.

Again, in each case, Senators may question a nominee about a past position, but sometimes the sincere answer will be "it was my job to make that argument." Even then, though, a Senator can follow up by asking whether the nominee now believes the past argument he made was correct or not.

This question is not too hypothetical or abstract to yield a helpful answer. Nor will a candid response -- so long as it does not take the form of a guarantee -- create an impression of prejudice should the issue recur in a case down the road.

How Senators Should Evaluate Nominees from the Academy

In contrast, legal academics can rarely defend their past positions by pointing to someone else like a client or a superior. Academic freedom means that scholars are able, and encouraged, to say what they really believe.

Still, even here, Senators should be sensitive to the nuanced roles academics play. Professors are taught to be, and rewarded for being, provocative. Thus, an academic will sometimes float an argument to generate discussion and dialogue, even when he is not yet convinced that he is right. (Some of Robert Bork's controversial scholarship may belong in this category.)

Moreover, and relatedly, good academics, like good judges, are open-minded and sometimes abandon even deeply-held views when new arguments and evidence emerge. Again, this is an instance where what may really be a virtue -- an ability to be persuaded and not to be rigid in one's thinking -- can wrongly be painted as a vice during the confirmation process: a hypocrisy or a weakness of the mind.

The Costs of Senate Error

Although we believe that the Senate capable of a meaningful and productive dialogue with nominees, we admit that there is always a chance the Senate will misplay the game, with unfortunate consequences.

We focus less on the injustice to nominees whose past may be mischaracterized, because the constitutional process is not about fairness to individual nominees so much as it is about safeguarding the federal judiciary. No one has a vested property right to a federal judgeship, so very little "due process" to nominees is required.

But above and beyond possible unfairness to individual nominees, are larger systemic concerns. First, those who want to be judges may avoid taking positions that may be distorted later, with the result that much good speech and lawyering will be chilled and lost.

Second, and relatedly, the only people who make it through the Senatorial gauntlet will be "stealth" candidates who have scrupulously avoided talking (and perhaps thinking) about the great issues of the day.