Is the President Entitled to Deference on His Supreme Court Nominees?Mike Rappaport

Yes, say many right wing legal commentators.  But the question is why?   It is sometimes said that the Constitution gives the President the decision of which person to nominate and therefore the Senate should defer to that decision.  But that seems mistaken. The Constitution also assigns to the Senate the role of advising and consenting to the nomination.  Why does the Senate have to defer as to whether to consent?  There is nothing in the Constitution about deference.

Another argument is that if the President does not get deference, there will be long and contentious nomination proceedings.  Well, that might be, but so what.  There are both benefits and costs to such proceedings, and the benefits include educating the public about the Supreme Court.  Moreover, this argument begs the question.  The President could avoid contentious proceedings by nominating a more moderate person.  Why should the Senate have to defer rather than the President?

It is true that the Constitution assigns the President the first move -- he nominates and the Senate must respond.  But that does not require the Senate to defer.  It merely means that the Senate's job is to judge the person that the President has nominated and to determine whether that person is fit.  But that does not suggest that they must defer to his choice.  If they determine that his choice is unfit, then they can and should oppose.  To put it differently, that the President nominates makes it difficult for the Senate to oppose that nominee because they would have preferred someone else.  But it does not preclude the Senate from opposing the nominee because he or she fails to satisfy standards of fitness that the Senate believes to be applicable.

Finally, there is a significant problem with requiring senatorial deference.  It allows the President to select nominees who are strongly disposed towards executive power.  Senatorial deference might therefore lead over time to a court that is biased towards the executive.  By contrast, requiring the President to compromise with the Senate would lead to a more even handed selection of justices.

I should say that I don't think my view here has significant implications for the present nomination.  The President and 60 Democrats appear to agree that Sotomayor is a fit nominee.   The real question is what should happen if a Senate majority (or a minority that can filibuster) disagree with the President.

Comments

[Keith Wollenberg]

The problem is that the process has evolved in such a way that the Senate is not trying to actually conduct a reasoned inquiry, and there is no upside for a nominee providing substantive answers. All that can result if he/she does so is to provide fodder for the game of "gotcha". So we have this Kabuki show hearing, in which careful non-answers are the order of the day. And sadly, this is unlikely to change.

[Gregory Koster]

Dear Mr. Rappaport: Perhaps the answer is that the Framers didn't think judges mattered much. The Constitution was written in an era when Hamilton could write, believe, and expect to persuade others by arguing that the Judiciary was the least dangerous branch as it lacked the power of sword & honors or purse and lawmaking. Given that, all you need for the judicial branch are sharp people, their views don't matter so much because of the modesty of the judiciary.

Well, how did the judiciary keep this promise? Today it is composed of messianic zanies grabbing at everything they can get their hands on. Trouble with California state prisons? Easy, let a federal judge appoint a special master to take over, and stuff million after million of taxpayer loot down the gullets of the guards union, a special organization blessed with infallible knowledge of How to Vote Correctly. I'm sure you can name other examples. So the old model of "let the Prez handle it" is busted beyond repair. But there's no replacement in sight, as the present hearings of SS and Her Wise Latina Lies are demonstrating. This show deserves a long run (which it won't get) if only because a) the popcorn, beer, hot dog, and crackerjack sales are bound to pull the country out of a recession and b) watching SS do her impression of John "I'm just an umpire" Roberts will do more to cheer the country up than any number of Joe Biden gaffes.

Sincerely yours,
Gregory Koster