Like the last four Supreme Court nominees, Sonia Sotomayor is in virtually no danger of being rejected by the Senate. Given this simple truth, one would think that the judicial confirmation process would be relatively uncontroversial.
And yet, anyone who follows the Sotomayor hearings and the surrounding commentary should expect to hear a great deal of complaints about the alleged deficiencies of the process. In Christopher Eisgruber's The Next Justice: Repairing the Supreme Court Appointments Process
and Ben Wittes' Confirmation Wars: Preserving Independent Courts in Angry Times
, both authors describe the modern process as "broken" and having "changed fundamentally for the worse." In particular, they address as the complaints that hearings tending to be longer, more contentious, and less civil over time although the same basic structures have remained in place. Despite this framing, thankfully neither of these books is a jeremiad, and their bottom line conclusions wouldn't change a great deal about the current process. But their beginning assumption of a process that has changed for the worse is quite widespread. And with this selection being made by President Barack Obama, it's likely to be Democrats (and more liberal pundits) who will call foul this time around, replacing the conservatives who complained bitterly about the allegedly brutal treatment of Samuel Alito and John Roberts.
Rather than joining in these (frequently bad faith) complaints, however, and as someone who strongly supports Sotomayor's confirmation, I'd like to suggest that the modern confirmation process works well enough. Further, attempting to "depoliticize" the process would be both impossible and undesirable.
The major arguments against the modern process all have serious flaws:
Protecting Presidential Prerogatives: The Senate -- while it has never been a consistent rubber stamp -- has recently taken a more active role in questioning and opposing judicial nominees. Critics of the process generally argue that the Senate should be more deferential, focusing on a nominee's qualifications rather than his or her legal philosophy.
When it comes to the president's cabinet appointments, Senate deference makes sense. A president should expect to have his administration run with like-minded individuals. Indeed it is difficult to imagine how government could function otherwise. When it comes to life-tenured appointments to an independent branch, however, an exclusive focus on formal credentials rather than ideology makes very little sense. Just as modern presidents almost always consider judicial ideology when selecting candidates, it is perfectly legitimate for the Senate to consider ideology as well. The random distribution of judicial appointments and the lack of term limits on federal judges makes the moderating effect of an active Senate particularly desirable.
The Lack Of Civility Produces Inferior Nominees: The second major criticism of the contemporary confirmation process is that talented nominees, facing the prospect of longer and more critical hearings, will refuse to the part of the process. For example, Republicans point to their favorite martyr, Miguel Estrada, who refused to be considered for a Supreme Court appointment from Bush because mean Senate Democrats prevented him from receiving the appellate court nomination to which he was allegedly entitled.
The main problem with this argument, as Wittes acknowledges, is that the formal credentials of Supreme Court justices is considerably higher than it's ever been. Excepting isolated anecdotes, it is highly implausible to assume that there will ever be a serious shortage of well-credentialed candidates (leaving aside the question of whether the very recent focus on a certain set of narrow credentials even makes sense.)
The Process is "Politicized": This is perhaps the central complaint. As the hearings have become longer and more contentious, the hearings process has become too "partisan," which is allegedly a threat to the impartiality of the Court.
The complaint, however -- like most arguments based on the shocking fact that politics are practiced in the Senate -- tends to crumble under inspection. A central point that has to be acknowledged by honest court-watchers is that most Supreme Court cases involve questions about which reasonable people can disagree. And while these legal disagreements do not precisely mirror political disagreements in politically salient cases, conservative and liberal appointees are likely to disagree in predictable ways.
That said, constitutional views are not reducible to political views: even the most conservative judges do not think that the Constitution requires supply-side tax cuts, and even the most liberal judges do not think that the Constitution requires universal health care. In my view, this does not undermine the legitimacy of judicial review. But if judicial review requires obfuscating this basic fact and pretending that Supreme Court justices are simply engaging in narrow, technical decision-making without broader ideological consequences, the institution is not worth saving. It is better to be candid about competing constitutional philosophies.
A particularly strange variant of this argument fetishizes the number of "no" votes justices receive, as if it's unacceptably "political" for Senators to disagree with the views of a formally qualified nominee. Many Republican politicians and pundits seem outraged about the number of senators who deigned to vote against Alito and Roberts, and centrist critics like Wittes seem to find the opposition to Alito objectionable as well. What none of them can explain is why exactly it matters if a justice gets 35 no votes or five.
Moreover, complaints about the "politicization" of the process are not merely useless but counterproductive. Strangely, the Robert Bork nomination -- in which a justice was rejected not for personal reasons but because his confirmation would have caused radical changes to constitutional law -- has come to define an unfair process in which a justice was unfairly "demonized." For this reason, perfectly legitimate substantive disagreements are often couched as specious arguments about a nominee's "qualifications," with an excessive discussion of trivial personal issues. This kind of discourse is particularly dismaying in Sotomayor's case, as given her very high level of formal qualifications such accusations are inevitably tinged with racism and sexism.
Ideally, the Sotomayor hearings would not be "depoliticized" but conducted as a more honest form of political and constitutional disagreement. Republicans should raise fair points about ideological conflict, and Democrats inside and outside the Senate should vigorously defend Sotomayor's judicial philosophy rather than whining about the number of Republican Senators casting largely symbolic "no" votes. And questions about whether a nominee with sterling credentials by any historical standard is "qualified" to sit on the bench should be relentlessly exposed as the egregiously offensive double standards that they are.
