by Geoffrey R. Stone, Edward H. Levi, Distinguished Service Professor of Law, The University of Chicago
* This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.
In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”
This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.
In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.
Moreover, this is true even when the senators disagree with a nominee’s judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee’s confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president’s term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.
The “no rules/law of the jungle” assertion is premised primarily on the fact that since the Supreme Court’s 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.*
This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner. But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.