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By AndrewHyman Posted in Analysis and Predictions — Comments (3) / Email this page » / Leave a comment »

Today is Constitution Day, and it's Justice Souter's birthday (his 67th), and today also marks twenty years since William Rehnquist was confirmed as Chief Justice. So, it seems like a good day to review a new book by Benjamin Wittes of the Washington Post, titled Confirmation Wars.

I don't agree with many of his arguments, but Wittes does offer an interesting read. Perhaps the most newsworthy item is this info about Miguel Estrada, who's a personal friend of Wittes:

Estrada is, indeed, deeply conservative, yet his politics and legal views are hardly simple. He opposes the Supreme Court's decisions of late revitalizing the commerce clause as a limitation on congressional power relative to state governments, for example --- one of the cornerstones of the conservative judicial revolution....I know Estrada's views on U.S. v. Lopez, 514 U.S. 549 (1995) and its progeny from numerous private conversations with him.

This is somewhat surprising news about Estrada. The dissenters in Lopez were Justices Breyer, Stevens, Souter, and Ginsburg. Personally, I thought the opinion of Chief Justice Rehnquist in that case was one of his best, and fears that his opinion would begin rolling back the New Deal were vastly overblown.

MORE BELOW THE FOLD....

The book by Wittes has lots of other interesting stuff in it. He urges that the President and Chief Justice team up in order to put an end to nominees testifying before the Senate Judiciary Committee. I don't feel very strongly one way or the other on that question. The most objectionable aspect of such testimony is when Senators seek to extract concessions, promises, or predictions about how a nominee will rule in future cases. If the courts continue to throw off the shackles and logic of the Constitution, and instead act as super-legislators, then it would make some sense for the Senate to screen out nominees whose views are obnoxious to the people's elected representatives. As Wittes acknowledges, "Americans care because judges are deciding more and more issues closer and closer to their lives."

One point that I emphatically disagree with Wittes about is his proposal that "the Senate ought to focus its considerable power on forcing the president to nominate someone to the majority's liking." Wittes elaborates that the Senate could "refuse to confirm a nominee not selected from a preapproved list." This is a horrible suggestion, IMHO. Such behavior by the Senate would violate a norm that has strong roots in the Constitution, and would arguably usurp the nomination power. It is one thing for Senators to provide suggestions, either at the request of the President or at their own initiative, but it is quite another for them to attempt to coerce the President. Article II, Section II, Clause II of the Constitution says that the President "shall nominate, and by and with the advice and consent of the senate, shall appoint" judges. Andrew McCarthy has explained that, "as far as the constitution is concerned, the Senate's advice is required only after the
president has made his nominations." This was by design. Hamilton explained it all in Federalist 76: his fear was that letting the Senate make nominations would
dramatically lower the quality of the nominees. Wittes acknowledges that "it is the particularly impressive people of both parties who tend to attract opposition," and yet that is exactly the problem that would be exacerbated by following his suggestion that the Senate coerce nominations from the President. Wittes says that such behavior by the Senate "offers [Democrats] a far more promising avenue for the protection of liberal values" compared to haranguing and discrediting a nominee who has already been chosen; but pardon me for finding that prospect less than comforting. Wittes says that the current degradation of the confirmation process is essentially a response to the Supreme Court's ever-increasing power, but I fail to see how that problem could be addressed by the Senate essentially grabbing power, not from the courts, but from the presidency.

Like I said, Wittes's book does have lots of interesting stuff. For example, it's intriguing to read how Wittes characterizes what Congress intended when it enacted the Detainee Treatment Act last year: "Faced with a Court that regarded itself as confronted with substantial constitutional and treaty questions it had the power to hear, the legislature essentially declared, 'Oh, no, you don't.'" Apparently, Wittes's book went to print prior to the Court's Hamdan decision, in which the Court essentially declared (quite implausibly), "Oh, no, you didn't say 'Oh, no, you don't.'"

Wittes also discusses "the idea of a supermajority requirement for confirmation," but he condemns that idea as "terrible on its merits" since "if it somehow ever did get enacted, it would narrow the range of acceptable judges to the space between Breyer and O'Connor." Yet, Wittes doesn't seem to realize that he's talking about a tool that's already been used on judicial nominees starting in 2003: the perpetual filibuster.

UPDATE: For some additional ConfirmThem wisdom on the subject of coercing nominees from the President, see this post, and links therein. Wittes also wrote an op/ed recently, about the confirmation process, which was discussed here at ConfirmThem.