RIGHT BACK AT 'YA, DASCHLE!

The Executive responds. First, as this story reports (via Howard Bashman), among other things, President Bush's spokespeople have rejected claims that the Constitution requires that he consult with "the Senate" or individual Senators. And someone who could not unfairly be called President Bush's spokesperson in the Senate -- or member of the same "faction," if I were speaking in the language of the Federalist -- former Texas Attorney General John Cornyn, has written a long letter in response to recent Senate Democrat letters to President Bush, the full text of which you can read also courtesy of the tireless Howard Bashman, here. Howard thinks that John Cornyn is doing good work in the Senate in "restor[ing] sanity to the judicial confirmations process," but I'm not so sure.

From the outset, it should be clear that we are dealing in myths when we refer to the President's "individual judgment" respecting judicial nominees. The President himself doesn't do most of the work in nominating judicial candidates in the manner of George Washington, apparently; sure, his name is on the bottom of the letter, but there is a complicated process of vetting that involves a whole division of the Department of Justice, the Office of Legal Policy. (Nowadays, this Office also has the responsibility of carrying out the nominations battle on the web, as you can see from their site.) I'm not trying to make a weasel argument here -- of course, to the President falls the ultimate responsibility of choosing and putting the vast political powers of the Presidency behind his judicial nominees. But as in other areas of political life, what was originally intended quite literally to rest "in one man" (or "one body") is now part of a bureaucratic process that is both invisible to the Constitution and relatively free from public scrutiny or at least public attention. "Invisible" does not mean "not permitted," of course. Remember that it took a long time for there to be standing committees in Congress (not mentioned in the Constitution) and it took a long time for the multiple bureaucratic agencies to develop to help both Congress and the President with their legislative goals (not explicitly mentioned in the Constitution, either).

In addition, and more importantly, John Cornyn is not being entirely candid about the reasons why this President -- or most, if not all, other Presidents -- have chosen Supreme Court nominees, at least according to the judgment of many political scientists who have studied the nominations process. Here is what Cornyn says about how the President has chosen nominees for the federal bench:

You have done your part in the judicial selection process by establishing an exceptionally successful system for selecting the finest legal minds in the country to serve on the federal bench. You have insisted upon individuals who understand that the role of a judge is to interpret, and not to make, law. [. . .]The preferences of any individual Senator should not distract any President from his constitutional responsibility to select individuals who are committed to faithfully interpreting the law on behalf of the American people.

According to Cornyn, professional competence and a particular view of interpretation (one with partisan overtones not mentioned in this letter) have guided the selection of lower court judicial nominees, and would presumably guide the choice of any future Supreme Court nominee. Throughout the history of the appointments process, Presidents have looked at a lot of other things as well, and I refer you to "Justices and Presidents" by Henry Abraham (Oxford University Press, 1974; new edition here) for a discussion of those factors, which have included geographic representation, religious and racial representation, and what Teddy Roosevelt called the nominees' "real politics." In a letter that Teddy Roosevelt -- who was about to become the new historical darling of the Republicans a few months ago, if I'm not mistaken -- wrote to Henry Cabot Lodge with respect to the potential nomination of Horace Lurton, TR says the following:

The nominal politics of the man has nothing to do with his actions on the bench. His real politics are all important. . .He is right on the Negro question; he is right on the power of the federal government; he is right on the Insular business; he is right about corporations, and he is right about labor. On every question that would come before the bench, he has so far shown himself to be in much closer touch with the policies in which you and I believe.(qtd. in Abraham, p.61)

You might say: well, that was Teddy Roosevelt and Bush will do this differently. But does anyone really believe that as future Supreme Court nominees are being vetted, there are no conversations like this that go on between the President and his advisors? The comparative glare of the now televised Senate Judiciary Committee hearings means that we have a public record as to what kinds of questions and concerns individual Senators have about nominees; no such record exists with respect to the President's choices, except for the anodyne assurances that the President is doing his constitutional responsibility, not applying "litmus tests" and selecting individuals who will "follow the law." As I've said before, these phrases are politically smart but otherwise fairly useless -- except, perhaps, in indicating that the President has estimated the "real politics" of the nominee and is satisfied with them.

I am not surprised that the Executive branch has apparently insisted on retaining control over the nominations process; it's a very Federalist-type response: defend the prerogatives of your branch, as you see them. Probably the Framers would have found it odd that Senators like Cornyn would rush to the President's aid, unless, of course, they're part of the same faction, which is, according the Federalist, dangerous. At this point, though, I have to say that it's a pretty exciting spectacle, at least from where I sit.