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Judging judges: a touchy issue

THE BALTIMORE SUN

WASHINGTON - As the Senate prepares to scrutinize President Bush's first wave of nominees to the federal courts, one of the questions facing it is how much, if at all, the ideology of the candidates should influence the Senate's vote.

Presidents typically place great weight on the ideology of their nominees, choosing people who share their views on hotly disputed issues and on matters of judicial philosophy. Bush has been particularly open on this point and is expected to send the Senate a list of nominees today reflecting his desire for a more conservative federal bench.

But whether the Senate should also focus on the political and judicial leanings of the nominees - or should consider only their professional qualifications - is an unsettled question that constitutional scholars have long debated.

Some maintain that only the president is entitled to use the appointment process to shape the philosophy of the federal courts. They say that because the Constitution gives the president the power to nominate judges, the Senate's role is simply to ensure that this power is not abused, even if the two branches are controlled by different political parties.

"I think unless a person is incompetent or extreme, the Senate should defer to the president," says C. Boyden Gray, White House counsel to the elder President Bush. "They'll have a shot at the White House in four years."

Others claim a more active role for the Senate. They say the Senate is not limited to considering the professional experience of nominees but may also take into account their views on particular issues, such as the balance of power between the states and the federal government or the degree to which the Constitution protects individual rights.

"I don't think senators have some obligation to rubber-stamp nominees for the lower federal courts," says Harvard Law professor Laurence H. Tribe. "It should not be enough to say that a person is not a child molester and is very smart."

At the heart of the dispute is the ambiguous language of the Constitution. It states that the president "shall nominate, and by and with the Advice and Consent of the Senate, appoint" judges to the federal courts. But it says nothing about what type of advice the Senate should give or what factors it should consider before granting its consent.

That raises another set of questions. Could the Senate withhold consent simply because it disliked a candidate personally? Could it dictate the president's nominees by agreeing to confirm only certain people? Could it refuse to confirm any nominees until a new president is elected?

Although not expressly ruled out by the Constitution's language, these are not permissible options, most scholars say.

The drafters of the Constitution initially gave the Senate sole power to appoint federal judges but changed the formula because they believed the president was in a better position to identify qualified candidates and could more easily be held accountable for his choices. As a result, scholars generally agree that the president is the lead actor in the appointment process and should not be upstaged by the Senate.

"It's a mistake to think they are equal partners here," says Richard Friedman, a law professor at the University of Michigan.

At the same time, the drafters were unwilling to give the president complete freedom in choosing judges. They thought the Senate's involvement would prevent the president from using appointments to reward friends or to gain favor with powerful interests.

The drafters did not discuss the need for the Senate to screen the political beliefs of the president's nominees, probably because they did not view the work of judges as motivated by politics.

As heirs to the British common law tradition, they believed that judges did not make the law but declared what the law was. They also did not anticipate the kinds of ideological disputes that would emerge over interpretation of the Constitution.

As Tribe points out, ideology quickly became a dominant concern. When George Washington nominated John Rutledge in 1795 to be second chief justice of the United States, Senate debate centered on Rutledge's opposition to a recent treaty with Britain. And in a vote that broke down along party lines, the Senate rejected his nomination.

Twenty-five nominees to the Supreme Court have been rejected since. At least a half-dozen were defeated expressly on ideological grounds, and many others were rejected by a Senate politically opposed to the sitting president.

Tribe notes that history to support his view that the Senate is authorized to consider the ideology of Supreme Court nominees. But he acknowledges that the case for evaluating the politics of lower court nominees is weaker.

Judges on the district and appellate courts deal often with technical and procedural issues that have few political overtones. They are obliged to follow Supreme Court precedents.

Still, district court judges are the main points of contact between the judiciary and the public, and appellate courts have the final say in important cases - involving issues such as affirmative action and abortion regulations - that the Supreme Court declines to hear. And in recent decades, presidents have increasingly drawn their Supreme Court nominees from the appellate courts.

"That may make it important for the Senate to be more vigilant," says Tribe, noting that once a nominee has been confirmed to a lower court, it is harder to defeat his elevation to a higher court.

Tribe and other prominent liberal scholars recently spoke at a retreat attended by 42 of the Senate's 50 Democrats. The scholars' message was that the senators are not obliged to roll over and accept Bush's nominees to the 94 vacancies on the lower federal courts.

If a Supreme Court justice retires, they said, Democrats should insist on a replacement who is acceptable to both parties.

Other scholars have gone further. In a recent article, Yale law Professor Bruce Ackerman argued that as a result of Bush's contested victory in last year's election - and the Supreme Court's role in ensuring that victory - Democrats should refuse to confirm any Supreme Court nominees until the next election.

Although Democrats cannot defeat a nomination with their 50 votes, Ackerman pointed out that it takes 40 votes to delay confirmation indefinitely through a filibuster.

Ackerman's position is not widely shared, even among liberals. But the assumption underlying it - that it is appropriate to wage political battle over the appointment of federal judges - is increasingly common.

Friedman of the University of Michigan has long argued against that view. But after the Senate's defeat of Supreme Court nominee Robert H. Bork in 1987, largely on ideological grounds, he concedes that he is fighting a losing cause.

"I'm grudgingly conceding defeat, not on the merits but on reality," says Friedman, who is concerned less with the division of power between the president and the Senate than the effect on the judiciary.

If the Senate focuses on the ideology of judicial nominees, presidents will be less likely to select candidates with extensive public experience or controversial views. That could keep excellent lawyers off the bench. Such highly regarded justices as Louis Brandeis, Charles Evans Hughes, Hugo Black and Earl Warren might never have been confirmed, Friedman says, had they faced the kind of political scrutiny typical today.

He also thinks the tone of the confirmation debates affects the way judges view their jobs.

"If you treat judges like ordinary political officers, I think they tend to behave that way," he says. "But if their appointment is less political, chances improve that they will be too."

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