(Editor's Note: This piece first appeared in the Washington Examiner on September 4, 2018.)
The way the Senate decides who serves on the Supreme Court bears little resemblance to the process envisioned in the Constitution. As evidence, look no further than reactions by its members to President Trump’s decision to tap Brett Kavanaugh to be the next associate justice. The effort to replace former Justice Anthony Kennedy on the court has been portrayed rightly as a pivotal moment in politics. Liberals and conservatives alike are casting the choice that confronts senators as one that will set the direction of the federal judiciary for a generation or more. And Kavanaugh’s confirmation hearings in the Senate Judiciary Committee are being billed as Congress’ main event this fall.
Yet despite all the hype, one gets the sense that senators believe that Kavanaugh’s confirmation is a foregone conclusion. While it is certainly the case that Kavanaugh is likely to clear the Senate barring any unexpected revelations, the way in which senators perform their role makes such disclosures unlikely. Today’s confirmation process leaves the impression of dramatic suspense without its messy uncertainty. In short, no one expects Kavanaugh’s confirmation to be derailed because the confirmation hearings are not intended to reveal the kind of information that could jeopardize a nominee’s chances. This is because senators generally avoid close scrutiny of a nominees’ views on specific cases that may come before the Supreme Court in the future.
But in viewing such questioning as inappropriate, senators risk assuming a secondary role to the president in deciding who gets to serve on the Supreme Court. Such deference is in stark contrast to the process laid out in the Constitution’s Appointments Clause, which stipulates that the president and the Senate exercise that power together. By choosing not to ask Kavanaugh about whether he thinks cases like Roe v. Wade were rightly decided, senators are inadvertently undermining the Constitution’s separation of powers and the independence of the judiciary.
The idea of separate and independent branches of government requires that the legislative, executive, and judicial branches should have as little agency as possible in the selection of each other’s members. Of course, the House of Representatives is elected by popular vote. The Senate was originally selected by state legislatures (until the 17th Amendment was ratified). And the president is chosen, at least in theory, by the Electoral College.
Yet a different arrangement is needed to determine who serves on the Supreme Court. This is because the judiciary is supposed to be apolitical and independent. Electing justices via popular vote like members of the House would make it an inherently political branch. And letting the states, Congress, or the president pick its justices exclusively would jeopardize the Supreme Court’s independence. The Appointments Clause solves this problem by creating a joint presidential-senatorial role in the confirmation process that ensures nominees will be vetted thoroughly by both branches before assuming lifetime positions on the highest court in the land. This preserves, rather than threatens, judicial independence and the apolitical nature of the judiciary.
In contrast, senators today appear openly eager to minimize the revelation of information that may complicate a nominee’s path to confirmation. For example, Senate Majority Leader Mitch McConnell, R-Ky., reportedly cautioned Trump that picking Kavanaugh would jeopardize a successful confirmation due to his lengthy paper trail. And many of the Senate’s Democrats were quick to announce their opposition to Kavanaugh and pledged to use his upcoming confirmation hearings to ask tough questions that would expose the nominee’s true feelings about the legitimacy of important precedents like Roe. But the Senate Judiciary Committee Chair Chuck Grassley, R-Iowa, reminded his Democratic colleagues that they previously considered such questioning inappropriate during the confirmation hearings for recent Supreme Court nominees, including those nominated by President Barack Obama.
The handful of senators who will ultimately determine whether or not Kavanaugh is confirmed have tried to downplay expectations that they will be able to fully assess his views. When asked about what Kavanaugh thought about Roe, Sen. Lisa Murkowski, R-Alaska, responded that she had no way to know with certainty what his views were and was thus left with no choice but “to discern as best we can” how he would rule. The reason? Senators simply didn’t ask such “inappropriate” questions. However, senators have no problem at all with conducting extensive research into a nominee’s financial records, past experience, and writings, which makes it odd that asking questions concerning their views on existing precedents is somehow considered out-of-bounds.
Senators’ unwillingness to ask nominees illuminating questions stands in stark contrast to the rapidity with which they solidified their positions on Kavanaugh. The Founders did not anticipate the level of partisan team play in contemporary politics. But they were sensitive to the influence partisanship could have on the proper functioning of the confirmation process. While he opposed the Appointments Clause, John Adams presciently articulated the dangers knee-jerk partisanship posed to it in a letter to Roger Sherman shortly after the Constitution was ratified:
“We shall very soon have parties formed[…] these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers. Suppose such parties formed in the Senate, and then consider what factious divisions we shall have there upon every nomination.”
Adams was right; but only in part. The confirmation process is presently characterized by fractious divisions caused by partisanship. Yet these divisions do not appear to be deep enough to spur senators to ask nominees specific questions relating to how they would perform the job for which they are being considered.