Judging Obama's Nominee

By Ed Gillespie
Wednesday, May 20, 2009

As President Obama decides on a Supreme Court nominee to replace Justice David Souter, Senate Republicans must decide whether they will abide by the standard they used in confirming Justices Ruth Bader Ginsburg and Stephen Breyer during Bill Clinton's first term, or the standard set by Democrats in the confirmations of Chief Justice John Roberts and Justice Samuel Alito during George W. Bush's second term. This is one instance where changing their previous position can be a principled approach.

In 1993 and '94, Republicans voted overwhelmingly to confirm Clinton's nominees on the long-held premise that presidential elections have consequences, and one of the most important of them is a president's prerogative to fill Supreme Court vacancies. If a nominee was qualified in terms of temperament, experience and intellect, senators should not vote against him or her for having a different judicial philosophy.

Sen. Orrin Hatch, then the ranking Republican on the Senate Judiciary Committee, summed up this traditional approach to consideration of Supreme Court nominees in announcing his vote to confirm Ginsburg in August 1993: "If a nominee is experienced in the law, highly intelligent, of good character and temperament, and -- most important -- gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, the mere fact that I might have selected a different nominee will not lead me to oppose the President's nominee."

For most of our history, this perspective was broadly shared on both sides of the aisle when it came to the unique intersection of the executive, legislative and judicial branches encompassed in the Supreme Court nomination and confirmation process. On the basis of this understanding, 41 of 44 Senate Republicans voted to confirm Ginsburg and 33 of 42 voted to confirm Breyer.

In 2005, Senate Democrats -- notably then-Sens. Barack Obama, Joe Biden and Hillary Clinton -- argued for a different standard, one based on how they thought the nominee might rule on important cases in the future. On these grounds, all three opposed both Roberts and Alito. Indeed, half the Senate's 44 Democrats voted against confirming Roberts, and a shocking 40 of 44 voted against Alito.

Obama's own words from the Alito nomination debate in January 2006 capture this perspective (taking customary liberties in characterizing the views of those he disagrees with): "There are some who believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-around good guy; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view." He added that in deciding how to vote on a nominee, senators should consider "a judge's philosophy, ideology, and record."

In leading the White House efforts to confirm Roberts and serving as a "sherpa" for Alito's confirmation, I argued strongly along with many Senate Republicans that Democrats would be mistaken to change the historic standard for confirmation to the nation's highest court. Since they did, however, those same Senate Republicans would be mistaken if they didn't apply that same standard to President Obama's nominee.

Republicans cannot accept the premise that it's okay for liberals to vote against Supreme Court nominees who believe in a strict constructionist judicial philosophy but not okay for conservatives to vote against those who embrace empathetic activism on the bench.

The encroachment on executive prerogative is unfortunate, and its polarizing effect is unhealthy. But the shift in the balance of power from the presidency to Congress inherent in this approach is less troublesome than the inevitable leftward shift of our highest court if Republicans maintain the traditional standard while Democrats deploy an ideological one.

The writer served as counselor to President George W. Bush from June 2007 to January 2009. He was in charge of the confirmation of Chief Justice John Roberts and played a leading role in the confirmation of associate Justice Samuel Alito.

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