senate committee rejection of judicial candidates

[Scarberry, Mark]

  Perhaps this theory that the entire Senate must vote on presidential
nominees would also imply that the entire Senate must be consulted by the
President before a nomination is made. The same Senate which must "consent"
for a nominee to be confirmed is also supposed to "advise" the President.

But in fact the President takes advice from particular Senators on
particular district court and circuit court nominations. The President
decides which Senators he will take advice from (though he ignores the
traditions of the Senate at his peril). (And of course any Senator who
wishes to do so can send advice to the President.) The Senate then delegates
the initial decision on nominees to its chosen group, the Judiciary
Committee. The President has the prerogative to consult less than the full
Senate, and the Senate has the prerogative to have a committee screen
nominees. Nothing I see in the Constitution requires anything different.

By the way, lest an obligation to obtain advice be thought to be by its
nature discretionary, other areas of law impose consultation obligations,
even justiciable consultation obligations. I know of one in bankruptcy law,
and I think there are some in labor law. In a chapter 11 bankruptcy case,
the court decides whether to appoint a trustee to oust the debtor's managers
and take over control of the assets--but then a DOJ official (the United
States Trustee) appoints the trustee for the case, subject to the approval
of the bankruptcy judge. The Bankruptcy Code requires the DOJ official to
consult with the parties in interest (e.g., creditors) before making the
appointment. The bankruptcy judge may refuse to approve the appointment of a
trustee if the DOJ official failed to consult with the interested parties.
(In addition, if a sufficient number of creditors dislike the trustee, they
can vote in a replacement.) I suppose the analogy here is that the Senate
(or its Judiciary Committee) can block nominations if it believes there was
insufficient prior consultation with the Senate.

This is not to say that I like the practice of denying nominees votes on the
floor of the Senate. In fact, I'd like to see the Senate make it harder for
less than a majority of the Senate to block action. For example, I'd like to
see filibustering Senators required to speak hour after hour and very
publicly hold up the business of the Senate. The present practice of not
moving forward with legislation unless 60 Senators support holding a vote on
it comes near to making a supermajority the usual requirement in the Senate.
Perhaps that is contrary to the democratic principles put forward in the
Federalist Papers and to the negative implication--from the Constitution's
supermajority requirements for veto overrides and Constitutional
amendments--that a mere majority would ordinarily be sufficient for passage
of legislation.

With today's very closely split Senate, it is not clear that either party
would benefit more from the kind of changes I've suggested. If the
changes--to make it harder for less than a majority to block action--are
good policy, perhaps a bipartisan coalition might be formed to make such
changes. On the other hand, such changes would reduce the power of each
individual Senator, right? And perhaps on that basis most Senators would
oppose such changes. Comments from any public choice scholars on the list?

Mark Scarberry
Pepperdine

-----Original Message

-----Original Message-----
From: Mark Tushnet
To: CONLAWPROF at listserv.ucla.edu
Sent: 3/23/02 5:20 PM
Subject: Re: senate committee rejection of judicial candidates

A few points in response to David Bernstein:  WIthout taking into
account the (constitutional) policiers that lie behind the
constitutional provision allowing each house to determine its own rules
-- policies that implicate the ability of a house to conduct (all of)
its (constitutionally assigned) business effectively -- I think it
simply impossible to say whether his proposed policy is "more" or "less"
in keeping with the constitutional design, which includes more than the
performance of the advise and consent function.  (Consider here the
constitutional policy questions -- not the justiciability question --
raised by the assignment of substantial aspects of an impeachment trial
to a committee in the Walter Nixon case.  Is that "more" or "less" in
keeping with the constitutional requirement that the Senate -- not a
committee of the Senate -- try all impeachments?)

Second, it has been pointed out to me that Clinton did in fact make a
political issue of at least one nomination that, having received a vote
in the committee, was not forwarded to the floor:  that of Bill Lann Lee
as Assistant Attorney General.  (I take it that there's no substantial
argument that one could distinguish the Senate's advise and consent
function with respect to sub-cabinet appointees from that function with
respect to judges.  Certainly the constitutional language -- it's a
single clause -- doesn't support such a distinction.)  As I recall,
Democrats did object to the procedure, Clinton gave Lee an appointment
as Acting Assistant A.G., and a bunch of other stuff then happened (a
statute redefining how long an Acting can serve, among other things, I
believe).

Third, the characterization of what happened in the Pickering nomination
is already contested, with Republicans asserting that it's another
instance of character assassination and Borking, and Democrats asserting
that, by the end of the process, no one had been convinced that Judge
Pickering's character had been successfully attacked but that, by the
end of the process, the Democrats had been persuaded that Judge
Pickering's ideology was unacceptable to them.  Which characterization
of the events is "right" is, I think, a completely open question, in the
sense that the "right" characterization is the one that comes to be
accepted by relevant participants in the process.  The implications of
the alternative characterizations for future nominations are, I thnk,
apparent.

----- Original Message -----
From: David Bernstein <DavidEBernstein at AOL.COM>
Date: Saturday, March 23, 2002 2:44 pm
Subject: Re: senate committee rejection of judicial candidates

> I agree that not letting the nomination go to the floor is
> analogous.  It's a
> bad practice.  But as for the alleged frivolity of the argument,
> would Mark,
> as a champion of the Constititon outside the courts, in fact
> consider it
> frivolous if a joint committee of Republicans and Democrats in the
> Senate got
> together and introduced a bill that stated, "in keeping with our
> constitutional responsibilities, we believe that delegating the
> responsibility to 'advise and consent' to one or more members,
> short of the
> full Senate, is improper.  Henceforth, all presidential nominees
> shall be
> brought to the Senate floor for a vote within six months [or
> whatever] of
> their nomination, regardless of committee action or inaction
> thereon."  Would
> this in fact be a practice more in keeping, or less in keeping,
> with the
> advise and consent clause, which plainly refers to "the Senate",
> not "the
> Senate or any number of Senators whom the Senate shall designate?"
>
> My point about the Clinton nominees was simply that Mark had none-
> too-subtly
> accused those who are arguing for nominees to get a full Senate
> vote are
> playing politics, which no doubt some are.  But personally, I never
> previously thought much about the constitutional issues, because
> Clintondidn't make it an issue, unlike Bush.  And allowing a
> committee vote but not
> a full Senate vote immediately raised in my mind the issue of
> whether this
> reflected the view of the "Senate" in a way that a nominee not
> getting to the
> committee to begin with did not, though admittedly it should have.
>
> Putting aside the constitutional issues, I think it's extremely
> bad practice
> to delay nominations for months or years, deny full Senate votes,
> etc.  I
> said so during the Clinton years, though I can't say I have a
> written record.
> I also part company from those who say ideology should not play a
> role.  I
> think Senators can and should vote against nominees for any reason
> they deem
> appropriate. Indeed, that would be a superior situation to the
> type of
> character assassination that has substituted for acknowledged blatant
> ideological voting that we have seen with Pickering, Thomas, Bork,
> etc.  It
> has to discourage some good people from seeking nominations these
> days, that
> their legal practices could be put on hold for years at a time, their
> character impugned, etc.  Instead, give them a quick hearing, and vote
> against them because they're too conservative, or liberal, or
> whatever, but
> be honest about it (asking too much from a politician?) and face the
> (potential) wrath--or praise--of the voters.
>
> In a message dated 3/23/2002 1:59:50 PM Eastern Standard Time,
> tushnet at LAW.GEORGETOWN.EDU writes:
>
>
> > .  Practice:  (a)  Keith Whittington has referred to historical
> > practices of killing nominations without full votes by the
> Senate.  (b)
> > David Bernstein asserted that he did not know of Clinton nominations
> > that had been defeated in committee.  But, some Clinton
> nominations did
> > not come to a committee vote because of -- aha! -- Senate rules that
> > preclude committee votes on nominations where the nominee had
> not had a
> > hearing before the committee.  The Republicans killed
> nominations by
> > failing to hold hearings, but analytically the problem that
> creates is
> > indistinguishable from the invocation of a Senate rule that (unless
> > overridden by a majority of the Senate) bars floor consideration
> of a
> > nomination without a committee recommendation.  (
>
>
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law
> http://mason.gmu.edu/~dbernste
>