THE CONSTITUTION gives to the Senate the power to advise and consent to the nomination of federal judges. In the past, this has usually been a fairly routine exercise, since senators rely on the recommendations of their colleagues from the nominee's own state, on the intensive FBI field investigation, the evaluation by the American Bar Association and, of course, the judgment of the president. All of these come before a nomination is even announced. Nevertheless, senators are entitled to make their own evaluations and in the course of doing so to ask questions about a nominee's education, experience, views on public issues and judicial philosophy.
A small group of conservative, Republican senators has now decided to take this process a step further by sending questionnaires to prospective nominees seeking information on, among other things, their religious beliefs and political activities. Sen. Strom Thurmond, chairman of the Senate Judiciary Committee, has wisely asked that this practice be discontinued and that his colleagues save their questions until each nominee appears personally before the committee. But of greater concern even than the timing or the content of the questions is the purpose of the questioners. Is it their intention to oppose any nominee who does not answer every single question to their satisfaction? Will they attempt to pressure the president to withdraw objectionable nominations or block a vote by the full Senate? How will the White House respond to these tactics?
The administration has given assurances that, though it seeks strict constructionists for the courts and wants to appoint judicial conservatives, no strict litmus test will be applied to the nominees. No one will be rejected automatically because he does not accept every word and phrase of the Republican Party platform. The White House also realistically acknowledges that comity requires that occasionally Democrats and independents will be nominated, especially from those states where there are no Republicans senators.
It would be a serious mistake to change these procedures and understandings just because a small group of senators may want to assume a veto power over judicial nominations. The White House should make clear the president's intention to stand by his nominees, and the majority leader should announce that he will not be intimidated by a few colleagues who threaten to block votes. Senators can vote against any nominee they find objectionable, but a handful of legislators should not be allowed to control the critical process of choosing and confirming the nation's judges.