The Confirmation Process: No Way To Select The Judicial MVP

Below is today’s USA Today column on the confirmation process. This is one of two columns today (the other column ran in the L.A. Times) on the Kagan nomination.

President Obama’s nomination of Solicitor General Elena Kagan for the Supreme Court formally starts one of our most flawed constitutional traditions: the Senate confirmation hearings. It is enough to make the Framers blush, a process once described by Kagan herself as a ” vapid and hollow charade.” From movies to baseball, other fields select top candidates based on proven and unequalled performance. For court nominees, we often seek not the most valuable player but the most confirmable person.
The sad fact is that there is more demonstrated ability and evaluation in American Idol than these Senate hearings. The Constitution is silent on the standard for confirmation, and most senators view their job as confirming individual competence rather than comparative excellence. Under the Ginsburg rule (named after Justice Ruth Bader Ginsburg), nominees are also allowed to refuse to answer many questions on their specific legal views. As a result, what legal discussion that is generated is often little more than platitudes and generalities — like picking a doctor based solely on his stated commitment to “good health” and his strong opposition to premature death.

Other professions struggle to find the best person through a process of comparison — as opposed to high court confirmations where a single nominee is judged against herself.

•The College of Cardinals. Any unmarried Catholic male can be chosen as pontiff, though since Pope Urban VI in 1378, all popes have been selected from the ranks of cardinals. This means that the process compares more than 100 eligible candidates. When each cardinal casts his secret vote, he gives a Latin oath stating, “I call as my witness Christ the Lord who will be my judge, that my vote is given to the one who before God I think should be elected.” In confirmation hearings, the choice is only the president’s, with nominees often selected for political rather than intellectual viability.

•Baseball’s MVP. The most valuable player in Major League Baseball is awarded by the Baseball Writers Association of America, the people who observe the performance of players over a lengthy season before selecting the best candidate. Conversely, senators never inquire as to whether a jurist is really the best choice among jurists, professors and lawyers who are widely cited as the intellectual leaders of their generation. We effectively select our judicial MVPs based on how good they look on a baseball card as opposed to their actual stats. If law professors and legal commentators selected nominees as sports writers select MVPs, few if any of the past dozen nominees would have made the final list — let alone the final choice.

•The Academy Awards. Of course, one could make selections of nominees based on the quality of their writings. When the Academy Awards are selected, the decision of who is the best actor or director is made by the roughly 6,000 members of the Academy of Motion Picture Arts and Sciences. While Academy voters compare the specific body of work of a candidate with other artists, senators avoid such comparisons and seem to prefer nominees with little prior writing (such as law review articles). It is like the Academy voting on the best movies based on trailers.

If we really wanted to select a judicial MVP, we would start by making comparisons between candidates, selecting from the clear leaders in the legal field, and demanding to see outstanding contributions to law as a prerequisite for confirmation. We would also discard the Ginsburg rule. If they state (as did nominee Clarence Thomas) that they just haven’t thought much about issues such as Roe v. Wade, they should be told to come back once they have. As Kagan once said, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”

In Kagan’s case, she appeared to endorse controversial views from the Bush administration in limiting civil liberties in the war on terror — views diametrically opposed to some of the most important decisions of the man she hopes to replace, Justice John Paul Stevens.

We were once able to put the likes of Louis Brandeis, Oliver Wendell Holmes and Joseph Story on the court. We now have a process that favors hope over experience with the advantage going to those nominees with the least writing and slimmest record.

No one is asking for white smoke to appear over the Capitol Dome to show a divinely selected nominee. But there is a serious problem when we take greater care in selecting our movies and MVPs than our justices.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

USA Today: May 12, 2010

13 thoughts on “The Confirmation Process: No Way To Select The Judicial MVP”

  1. The Appointment Power is right there in the Constitution. It is not an implied or judicially-created function. It is spelled out in express words in Article II, section 2.

    “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. ”

    There it is: “…he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…”

    Read [scroll to pp 542-43]about the subsequent judicial intepretation at:

    It looks like the Constitution has textually committed appointment of Justices to the President and the confirmation process to the Senate of the United States. It does not allow the alternative voting systems proposed here.

    As for the alternatives. Historically, the Pope was the Bishop of Rome, and was selected by the Romans until circa 1000 CE. The Popes established the College of Cardinals to take over the process. But take a look at that process. One, the Pope appoints all the Cardinals. Two, when the Pope dies, the Cardinals select a successor from their own ranks. Three, the new Pope then appoints all the new Cardinals. It is a completely closed system.

    Is this a serious proposal? No. There may be 100 eligible candidates in the College, but every single one was appointed unilaterally by one man.

    It is a lot like a system where the old board of editors or directors selects the new members and officers, without any input from stakeholders.

    If that were our model, the Chief Justice would appoint all the sitting Justices. They would serve as members of the College of Judicial Appointers. When the Chief or a Justice died or resigned, the Appointers would vote to name the successor. The successors would then vote for their own successors. Would anyone seriously propose such a system for the Court?

    No one else anywhere in the nation would have any say in the matter. Under the present system, the composition of the Court is somewhat insulated from popular pressure, but at least people who do not like it can vote for a different President and different Senators.

    The MVP voting system would turn the process of selecting a panel of prospective nominees over to unelected and nonappointed law prof and pundits, completely eliminating any democratic input. Two of the MVP voters once put Ted Williams at the bottom of their ballot. Nothing stops the profs from sending their views to the White House before the nomination, and to the Senate afterward. The ABA provides guidance from the private sector as it is.

    Academy Awards. Please. Look at some of the movies that have won.

    I just do not see the overwhelming problem described in the column. Sure, the profs would like to control the shortlist, but, unfortunately for them, the Constitution does not allow such a limitation on the Appointing Power.

    If it is such a problem, then let’s see the draft constitutional amendment to fix it.

    In the meantime, if you do not like the Senate confirmation process, then elect new Senators.

  2. Buddha:

    Here’s the conversation we’d truly like to hear about the SCOTUS selection process as explained by Rosencrantz and Guildenstern (playing the role of President) when questioned by King Claudius’ (Senate) about the peculiar nature of the amorphous nominee, Prince Hamlet:

    And can you, by no drift of circumstance,
    Get from him why he puts on this confusion,
    Grating so harshly all his days of quiet
    With turbulent and dangerous lunacy?

    He does confess he feels himself distracted;
    But from what cause he will by no means speak.

    Nor do we find him forward to be sounded,
    But, with a crafty madness, keeps aloof,
    When we would bring him on to some confession
    Of his true state.

    Did he receive you well?

    Most like a gentleman.

    But with much forcing of his disposition.

    Niggard of question; but, of our demands,
    Most free in his reply.

    Did you assay him?
    To any pastime?

    Madam, it so fell out, that certain players
    We o’er-raught on the way: of these we told him;
    And there did seem in him a kind of joy
    To hear of it: they are about the court,
    And, as I think, they have already order
    This night to play before him.

    ‘Tis most true:
    And he beseech’d me to entreat your majesties
    To hear and see the matter.

    With all my heart; and it doth much content me
    To hear him so inclined.
    Good gentlemen, give him a further edge,
    And drive his purpose on to these delights.

    We shall, my lord.

    Hamlet, Act 3, Scene 1

  3. “Read the Constitution and tell me where the Sct Judge(s) or for that fact any Federal Judge must be an attorney?”

    Their is no requirement for any federal judge to be an attorney, but it would sure tick off a lot of attorneys if a layman was nominated, let alone given the consent of the Senate.

    I’m pretty sure the first law school-educated Justice was John Marshall Harlan in 1877.

  4. BIL,

    The new Hamlet (2009) was shown on PBS, and is available as a DVD from Amazon and probably from PBS, too. There is no reason your local library should not buy it. I loved the first Act.

    The New Doctor visited Churchill in the Cabinet War Rooms bunker to help him win World War II.

    As Winston said to the Doctor, and later to FDR, KBO.

  5. James,


    I’d really like to see that.

    I liked Tennant as the Doctor but the only other thing I’ve seen him in was “Casanova”, which was good but not my cup of tea. Stewart on the other hand, I got hooked on him watching RSC plays in college and the series “I, Claudius” on PBS before his Trek days. If Tennant can keep up with Stewart? They aren’t chewing up the scenery.

    They are gliding through it with the grace of gazelles.

  6. Buddha, completely off topic, but I’m watching the David Tennant/Patrick Stewart/Royal Shakespeare Company version of Hamlet and it’s fantastic.

  7. Isabel,

    I believe that SCOTUS nominees do not typically do interviews (at least I don’t recall seeing any). They certainly do not make the rounds of the morning shows (before or after confirmation). I don’t know about the propriety of the White House interview, but I suspect the press was trying to use it as a level to get unprecedented access.

    I hope that in her confirmation hearings Ms. Kagan discards the “vapid and hollow charade” engendered by the Ginsburg rule and actually answers questions. If she did I would feel much better about her nomination. I doubt this will be the case, however, since her career writings seem to be intentionally sparse for the purpose of being a viable SCOTUS nominee.

  8. Horatio:
    He waxes desperate with imagination.

    Let’s follow. ‘Tis not fit thus to obey him.

    Have after. To what issue will this come?

    Something is rotten in the state of Denmark.

    Heaven will direct it.

    Nay, let’s follow him. [Exeunt.]

    Hamlet Act 1, scene 4, 87–91
    In this scene, it is important to note that what Marcellus is referring to is the state of Denmark. The government, not the country proper.

  9. I vote for the MVP process with Prof. Turley on the selection board. The WH is reportedly preventing the press from interviewing her. The did some sort of “interview” with a WH staffer and posted the interview on the WH website. I don’t remember this sort of closeting [oops, maybe wrong word] of other nominees, but I am not an expert on the process.

  10. Alan,

    don’t forget with the advice and consent of the SENATE. Sounds like the prof may have some correlations correct. Read the Constitution and tell me where the Sct Judge(s) or for that fact any Federal Judge must be an attorney?

  11. Your entire analysis is incorrect. The President chooses the nominee, not the Senate. It is the President’s job to chose the “best” candidate, and in order to do so, he or she carefully reviews their qualifications, interviews the candidates, and turns to many people for advice and assistance.

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