Guideposts for Thinking and Discussion: The Court Today

Nomination and Confirmation of Supreme Court Justices

The Constitution instructs that the President nominate and the Senate (by a simple majority) confirm members of the Supreme Court. Although political considerations have always played a part in nominations, until recently confirmations have been obtained fairly quickly and for the most part outside public purview. However, since the failed nomination of Robert Bork in 1987 (he was not approved by the Senate) the media has tended to cover the nomination and confirmation process for Supreme Court Justices with more concentration than in the past. Moreover, Senate hearings for nominees are now televised, web sites devoted to the process proliferate, and interest groups campaign earnestly for or against nominees. The window of time between an announced nomination and the confirmation hearings also often exacerbates the campaign-like environment surrounding a nomination. For example, between the time President Bush selected Harriet Miers on October 3, 2005 and the moment she withdrew her nomination about a month later, opponents (mostly conservatives and Republicans) wrote articles, ran ads in newspapers and on the internet, established web sites, and effectively launched a negative row suggestive of a rather distasteful political campaign for President. In the aftermath, Judge Alito, Mr. Bush's second choice for the Court position, encountered an equally energetic melee, different only in that both proponents of his nomination as well as opponents pressed their case in as many media venues as could be found. One result of such commotion is that the larger public has become more aware of the qualifications and personal biography of nominees. Some observers even argue that the more transparent procedure ensures that Presidents will appoint reasonable, ideologically middle-of-the-road, candidates for the highest Court, knowing that a person deviating to a more radical ideological position, or lacking sound credentials, will face rocky and uncertain prospects.

Is this current system of nomination and confirmation of Supreme Court Justices the best way to ensure responsible Justices? What other methods would you recommend?

Senate Confirmation of Supreme Court Justices

In recent years a hurdle facing nominees for the Supreme Court has been the extended hearings held by the Senate Judiciary Committee prior to the Committee's making a recommendation to the full Senate. Each Senator on the Committee makes an opening statement, then each is allowed at least two discrete opportunities to interrogate the candidate. Very often Senators press a nominee to reveal exactly how he or she would vote on a specific, hot-button issue, such as abortion, separation of Church and State, or affirmative action. Some Senators believe that asking explicit questions is necessary and legitimate to gain full insight into how a Justice will perform on the most important issues facing the nation. Other Senators contend that each case appearing before the Court contains its own unique details and subtleties, requiring Justices to cogitate on the case at hand, rather than bring a preconceived view to the case. Thus, these Senators insist, a nominee before the Judiciary Committee cannot reasonably be expected to provide a straightforward answer to a loaded query, but should only be required to respond to broad and abstract questions.

Should Senate interviewers insist that a nominee indicate exactly how she or he would vote on specific court cases? Or should the Senators expect only a general philosophical answer to their questions?

Activist Judges

For the past half-century conservatives have criticized Supreme Court Justices for being too "activist." Typically the criticism refers to decisions originating with the Warren Court that resulted in dramatic changes in American society, such as in the civil rights cases starting with Brown v. Board of Education (1954), which, by overturning long-practiced segregation, required racial integration of public facilities. Critics argued that popularly-elected legislatures, not courts, should be responsible for such dramatic "action." Courts, on the other hand, should show deep respect for legislatures and operate much more modestly, simply interpreting the law. Presidents Nixon, Reagan, and George W. Bush indicated intentions to nominate non-activists to the Court. Yet, in more recent times, liberals, fearing that the Court might override earlier judicial precedents, such as Roe v. Wade (1973), legalizing abortion, or strike down certain state laws, such as those permitting medical uses of marijuana, have exhibited their own discomfort with "activist" but conservative Justices. That is, depending on one's ideology or one's view of a particular issue, the Court could be seen as appropriately cautious or dangerously "activist." (In fact, early in the Twentieth century, when the Supreme Court blocked federal and state laws aimed at regulating corporations and big business, it was often attacked as an activist, or interfering, Court unresponsive to the will of the people. See the History Essay).

Can "conservative" Justices be as "activist" as "liberal" Justices? Should one consider the Warren Court as "activist"? What about the Burger and Rehnquist Courts?

Original Intent and the Supreme Court

Like the dispute over judicial activism, conservatives have, for many years, insisted that the Supreme Court adhere to the "original intent" of the Constitution and not "make law." (Again, recent conservative Presidents have consistently promised to appoint judges who espouse original intent.) The argument carries a further implication: some legal scholars describe the U.S. Constitution as a "living" constitution, in that it is seen as flexible enough to be the basis for judicial decisions about issues impossible to envisage in 1787 (for example, the suitability of stem cell research, or what should be done about disagreements over end-of-life issues such as in the case of Terri Schiavo). On the other hand, some scholars point out that if the Court comes up with decisions wholly unconnected to the Constitution, that are simply a reflection of current mores, we cease being a Constitutional Republic. (See the introductory essay for the Basic Rights theme as well as the discussion on legal realism in the History essay.)

We may think more clearly about the conversation over originalism by taking two statements directly from the Constitution and placing them beside a decision that has often been charged with abandoning original intent. From the first Amendment to the Constitution we find these words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Amendment Fourteen says, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." That is, the right, or "privilege" a citizen has in the First Amendment against the national government is equally protected against state governments. These sections of the Constitution were the basis for the Warren Court's decision in Engel v. Vitale (1962). The Court struck down a New York State Board of Regents' requirement of an opening-day prayer at all schools in the state, ruling that the state-mandated prayer violated the First Amendment as applied to the States by the Fourteenth Amendment. The Court explained that the Constitution required that government neither hinder religious freedom nor endorse particular religious beliefs. Did the Court abide by the Constitution's "original intent" or "make law"? (One can analyze other controversial cases in the same way we have done here.)

Now, thinking about the Warren, Burger, and Rehnquist Courts, did they abide by the Constitution's "original intent" or "make law"?

Qualifications for a Supreme Court Justice

Article Three of the Constitution says nothing about qualifications for a Supreme Court Justice. However, we usually expect a Justice to have had legal training. For some years, major political figures received appointment to the Court, such as William Howard Taft, Charles Evan Hughes, and Earl Warren. By the late twentieth century, however, Presidents rarely considered well-known political figures as their choices. Americans had come to expect nominees with stellar legal and judicial backgrounds. One problem with the Miers nomination was that she did not have any experience serving as judge on a court (of course neither did John Marshall or William Rehnquist prior to entering the Supreme Court). In fact, most current Justices served in state or federal courts before being nominated to the high Court. Also, as the Roberts and Alito nominations show, appointees were expected to avoid passionate political beliefs and, at least in appearance, seem modest, reflective, and nonpartisan. Still, many Americans wish that justices would openly share their political preferences. Also, by the end of the Twentieth Century, Americans came to expect that the Court would be more representative of the American population than may have been the case in the distant past. Thus, for some time there has been one African American on the Court, at least one Jewish Justice, and for two decades a woman. In 2005 observers of the Court speculated that the time was near for a Hispanic appointment. At the same time, one noticeable qualification remained for all nominees: they were expected to have graduated from a major law school--Justices on the Court in 2005 had earned law degrees at Yale, Harvard, Columbia, Northwestern, and Stanford.

What qualities should Americans expect of judicial appointees? Describe your idea of a perfect Supreme Court Justice.