Nomination Watch

The pressure is mounting on the White House to release documents

Senators on the Judiciary Committee, from both parties, are saying that the White House should release documents that will shed light on Harriet Miers’ work and views.  This past weekend on Fox News, Senator Sam Brownback, R-KS, said “providing this type of information from the White House is almost a risk they assume when you nominate a candidate [for the Supreme Court] that’s from inside the White House. We need to know if we’re going to give advice and consent, and that’s our role in this process – it’s not a rubber stamp.”  On the same program, Senator Pat Leahy, ranking Democrat on the Committee, said he agrees with Senator Brownback.  Senator Lindsay Graham (R-SC) has also said he believes the Committee should see documents that “would give us a window” into some of her views.  “Where there’s a close call,” he said, “the tie goes toward disclosure.”

Apparently reacting to these developments, yesterday President Bush said that requests for “paperwork” about White House decision-making or Miers’ recommendations to him would not be granted.  We hope that doesn’t signal an absolute refusal to turn documents over to the committee.  As we have said, that position is not sustainable. In fact, our view has been echoed in recent days by law professors from across the country. 

Last Thursday, over 70 law professors wrote to Senators Specter and Leahy urging the Senate to insist that documents written by Miers, especially concerning issues likely to come before the Court, be produced.  They made the case that “President Bush should not be able to invoke executive privilege to prevent the Senate from fulfilling its constitutional duty to evaluate a nominee for the nation’s highest court. . . .  If Miers has written memos to the President about cases on the Supreme Court’s docket or about issues likely to come before the Court, the Senate has the right to that information.” 

Separately, New York University law professor Stephen Gillers, an expert in legal ethics, has written that a “categorical refusal to waive privilege for all of Miers’s advice since January 2001” is not justified.  Professor Gillers offers the following advice to the Senate: “If the Administration stonewalls, the senators must stare it down, not buckle.  It is an insult to the Senate and the nation for Bush to say that Miers is the best possible choice for the Court, or even a worthy one, and then cavalierly block discovery of the very information that supposedly supports this claim. This is not a partisan issue. It’s about the Senate’s institutional integrity – indeed, its constitutional relevance.”

Or, as Senator Brownback put it, “If we’re to give advice and consent, we’ve got to have a full picture.” 

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IndependentCourt.org coalition sends letters to President, Senate

The IndependentCourt.org coalition today sent a letter (.pdf) signed by over 80 diverse groups (including the National Women’s Law Center) to the President, urging him to choose a Supreme Court nominee “who can unite the country, earn the confidence of the American people, and win broad bipartisan support in the United States Senate.”   

The coalition sent a separate letter (.pdf) to the Senate, asking it to “ensure that the upcoming nomination and confirmation of a new Supreme Court justice is undertaken in a thorough and deliberate manner that produces a justice who serves the interests of all Americans.”   

judicial nominations supreme court independentcourt.org

Your call, Mr. President

"[The President can select] someone who will gain the confidence of the majority of Americans, someone who will enable the two aisles here to remove the center aisle, and we can join in a bipartisan way and give strong ratification to the President's choice."

Senator John Warner (R-VA) (Senate floor, July 1, 2005)

To fill the seat being vacated by Justice O’Connor, the President has a chance to go one of two directions.  He could decide to nominate someone with a record that has broad appeal to Americans across the spectrum and ensures the support of Senators of both parties, and he could thereby guarantee a smooth confirmation process.  That’s what happened when President Reagan nominated Sandra Day O’Connor to the Court.  She was confirmed unanimously.

Or the President could decide to nominate someone who will please the far right folks who are clamoring to be satisfied.  If his selections for the lower courts are any indication, the signs are ominous – just look at Janice Rogers Brown, to give one example.  If the President nominates someone with a radical record like hers, he will be responsible for bringing on a contentious confirmation process that will keep the Senate from doing other important work for the American people and that is sure to polarize the country. The battles over Robert Bork (who was defeated in 1987) and Clarence Thomas (who was confirmed by a vote of only 52 to 48, after a rancorous national debate) show what that can be like.

As Senator Warner put it, "This nomination of the first Supreme Court justice by this distinguished president gives him an opportunity to be a uniter, not a divider."

We remain hopeful that the President will follow this advice from a senior Senator in his own party – for the good of the country.

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Senate Democratic leaders still waiting for the phone to ring

The press has been reporting for weeks that the White House is vetting possible nominees to the Supreme Court.  As we discussed in this earlier post, the “Gang of 14” Senators whose deal averted the nuclear option agreed that the President should consult with the Senate before picking a nominee – as required by the advice and consent clause of the Constitution.  After all, naming someone with broad, bipartisan support could avoid a knock-down, drag-out fight and be good for the country. 

President Bush recently offered a glimmer of hope that he might go the consultation route when he said, “I look forward to talking to the Senate about the Supreme Court process, to get their opinions as well.”

So, has the Administration actually consulted leaders of the opposition party in the Senate?  Apparently not.  An article in Roll Call (subscription required) yesterday reported that when asked whether he had been consulted, Minority Leader Harry Reid (D-Nev.) replied, “Not me.”  And earlier this week Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, went to the Senate floor to reiterate his past pleas for a chance to work with the White House—but made clear that President Bush hasn’t talked to him either.  So far, Senate Democrats are still waiting by the phone, and it’s not ringing. 

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President Bush to “Gang of 14”: You talkin’ to me?

On Friday the Washington Post reported that President Bush may soon appoint dozens of new judicial nominees.  The article strongly suggests that the President is not going to consult with Senate Democrats about his choices:

The Bush team indicated that it plans no changes in its selection process in the wake of the Senate deal. Senate Democrats said they have not been consulted on any new nominations.

This stubborn refusal to consult with the other party in order to identify reasonable, consensus nominees benefits no-one—not the President, not the relationship between the three branches of government, and least of all not the American people. 

Got consultation?

As we told you last week, the deal that averted the nuclear option encourages the President to consult with Senators of both parties before naming judicial nominees: 

We believe that, under Article II, Section 2, of the United States Constitution, the word "advice" speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations. We encourage the executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

The President should take this advice.  There are plenty of examples of how this “consultation” business can really work.  Senator Orrin Hatch of Utah recently published a book in which he told the story of how President Clinton called him in 1993 to discuss possible nominees to the Supreme Court.  At the time, Democrats were a majority in the Senate, so President Clinton could have just tried to bully any nominee through—but he chose to consult nonetheless.  As Senator Hatch tells it, President Clinton suggested a person he had in mind, but Hatch told him that naming that individual could lead to a tough political battle.  Senator Hatch then suggested the names of Stephen Breyer and Ruth Bader Ginsburg as less controversial choices.  President Clinton took his advice, and both Justice Breyer and Justice Ginsburg were confirmed fairly easily.  (Senator Patrick Leahy referred to these events in this letter to President Bush two years ago.)

Past Republican Presidents have also found real consultation quite handy.  Republican President Gerald Ford consulted with Democratic Senators before naming Justice Stevens to the Supreme Court, with the result that his nomination was uncontroversial.  (Former Deputy Attorney General Harold Tyler talked about this nomination in this press briefing by the Constitution Project.)

Our country’s Founders, former Presidents of both parties, and a bipartisan group of 14 Senators all agree:  consultation and consensus are the way to go.  Let’s hope President Bush listens.