Why the Senate Should Confirm Judge Alito: The Democrats Liked Him Before, and They Don't Need to Love Him Now

By SCOTT GERBER

Thursday, Nov. 03, 2005

In a prior column I praised President George W. Bush for nominating Harriet Miers to replace the retiring Sandra Day O'Connor as an associate justice of the Supreme Court of the United States. My support for Miers turned in large part on what she was not: a sitting judge who graduated from elite academic institutions.

President Bush's new nominee, Samuel A. Alito, Jr., is both of these things: a judge with fifteen years experience on the U.S. Court of Appeals and a graduate of Princeton University and Yale Law School. I nevertheless believe that Judge Alito deserves to be confirmed to the Supreme Court. I don't think I'm being inconsistent.

In fact, I fear that the Senate's failure to confirm Judge Alito might return us once and for all to the hyper-politicized processes surrounding the 1987 defeat of Robert H. Bork's nomination to the high court, not to mention 1991's near-defeat of Clarence Thomas's nomination. The Senate should make sure it doesn't repeat those ugly chapters in American history.

The Constitution Establishes a Merit-Based Confirmation Process

The confirmation processes involving the last three nominees confirmed to the Supreme Court--Ruth Bader Ginsburg, Stephen G. Breyer, and, most recently, John G. Roberts, Jr.--focused on the merits of the respective candidates. The processes for Bork and Thomas were political, in the partisan sense of the word. And much more recently, the opposition to Miers also was partisan, although it was the right-wing of President Bush's own party that is to blame for her unfortunate withdrawal: It feared that Miers, though conservative, wasn't conservative enough.

Which type of confirmation process is the correct one isn't just a matter of taste, or policy; it's a matter of constitutional law. The Constitution envisions the sort of process that Ginsburg, Breyer, and Roberts experienced, and rejects the sort of process to which Bork, Thomas, and Miers were subjected.

Article 2, section 2, of the Constitution provides that the president, "by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." Significantly, this language reflects a compromise reached at the 1787 Constitutional Convention.

One group of delegates, including Roger Sherman, Oliver Ellsworth, Elbridge Gerry, Benjamin Franklin, Gunning Bedford, George Mason, and John Rutledge, was opposed to giving the appointment power to the executive because it could lead to monarchy. Another group, consisting of Gouverneur Morris, James Wilson, Nathaniel Gorham, Alexander Hamilton, and James Madison--those favoring the creation of a strong executive--believed that vesting the appointment power in a large legislative body would not only lead to lesser quality appointments, but also to deals and intrigues.

Given these diametrically opposed positions, compromise was not easily reached. The appointment power was debated extensively, and despite the best efforts of Gorham and Madison to reach an early compromise on the issue by giving both the executive and the Senate roles in the process, the debate continued into the last days of the convention. Then, almost mysteriously, the provision as it now exists, in which the president nominates and the Senate confirms or rejects, was adopted.

But the Framers' view wasn't simply that both the president and the Senate have roles to play in the appointment process. It also was that partisan use of the appointment power should be avoided. As Madison phrased it, they hoped for "a bench happily filled" with the esteemed likes of "Wythe, Blair, and Pendleton" --leading jurists of the day.

In short, the Constitutional Convention debates are silent on the criteria for appointment precisely because the delegates assumed the basis of selection would be merit. Even Hamilton, who saw a limited role for the Senate in the appointment process, believed that the Senate would, and should, reject a nominee who was lacking in objective merit. "Thus it could hardly happen," Hamilton wrote in Federalist no. 66, "that the majority of the Senate would feel any other complacency toward the object of an appointment than such as the appearances of merit might inspire and the proofs of the want of it destroy."

Professor Abraham's Non-Partisan Criteria for Supreme Court Candidates

Although many Court watchers believe that a merit-based appointment process is "not realistic," given the realities of constitutional politics, others disagree, including Professor Henry J. Abraham, the leading authority on the Supreme Court appointment process. According to Professor Abraham, "merit need not, indeed it does not, 'lie in the eye of the beholder.' It is eminently identifiable and attainable."

Professor Abraham identifies nine factors to consider when making a merit-based evaluation of a candidate for the Supreme Court:

(1) demonstrated judicial temperament; (2) professional expertise and competence; (3) absolute personal as well as professional integrity; (4) an able, agile, lucid mind; (5) appropriate professional educational background or training; (6) the ability to communicate clearly, both orally and in writing, and especially the latter; (7) resolute fair-mindedness; (8) a solid understanding of the proper judicial role of judges under our Constitution; and (9) ascertainable good health.

Conspicuously absent from Professor Abraham's list is a particular nominee's purported position on abortion--or any other hot button issue of the day. And fulfillment of each of his factors can be assessed in a way that puts partisan politics aside.

For example, Democrats can surely agree that some Republican nominees are fair-minded and appropriately educated. Republicans can surely admit that some Democratic nominees have integrity and write well.

Judge Alito Merits Unanimous Confirmation

Judge Alito easily satisfies every merit-based consideration outlined above, as did Chief Justice Roberts, and Associates Justices Ginsburg and Breyer before him. Indeed, the Senate concluded as much with respect to Judge Alito when it unanimously confirmed him to the U.S. Court of Appeals in 1990 and as U.S. Attorney for the District of New Jersey in 1987. Senator Edward M. Kennedy, D-MA, went so far during Alito's court of appeals confirmation process as to commend the nominee for his "very distinguished record" and "long service in the public interest," while Senator Frank R. Lautenberg, D-NJ, praised Alito's "impressive credentials" during Alito's confirmation process for U.S. Attorney.

Certainly, Judge Alito has issued several opinions--including one pertaining to abortion--with which some strongly disagree, but that doesn't make him unqualified to serve on the Supreme Court. If it does, we might as well abandon the merit-based appointment process the Framers established in the Constitution and start electing Supreme Court justices on the basis of campaign-style promises: "I'll vote to overturn Roe v. Wade!" or "I'll vote to permit unlimited access to abortion!" (Pick your poison.)

As those of us who live in states that elect judges can attest, that's a much more troubling scenario than the so-called nuclear/constitutional option that likely will be invoked if the Democrats filibuster Judge Alito's nomination on partisan grounds. The Framers expected more of the Senate, and the Constitution demands better.


Scott D. Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. His books include First Principles: The Jurisprudence of Clarence Thomas (New York University Press). He legal thriller, The Law Clerk, will be published in February by Seven Locks Press. His email address is [email protected]

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