The Changing of the Guard for the Constitution
THE CHANGING OF THE GUARD FOR THE CONSTITUTION
At the beginning of October, John Roberts was sworn in as chief justice of the United States; and our nation witnessed a rare changing of the guard that protects the United States Constitution. In 1789, President George Washington nominated John Jay to be our first chief justice. In September, the Senate confirmed President George W. Bush's nominee, John Roberts. Our nation has witnessed 43 presidential administrations, but just 17 chief justices. Almost everyone is familiar with presidential elections, but many people have only a passing knowledge of our judicial confirmation process.
The Constitution does not set any particular requirements for Supreme Court justices. There is no minimum age, as there is for presidents, senators and representatives. And justices need not be citizens or residents of the United States. Instead, our Framers left the qualifications of justices up to the judgment of the president and the Senate.
Over the years, we have had justices from a wide variety of backgrounds. Justice Byron White was a professional football player the NFL's league-leading rusher for two seasons before practicing law. Justice Samuel Miller trained as a physician. At the other end of the spectrum, before joining the court, Justice Earl Warren had been governor of California and Chief Justice William H. Taft had been president of the United States. The different experiences of the justices gave each of them a unique perspective to add to the court's understanding of its cases.
During our country's history, 140 people have been nominated to the Supreme Court and the Senate has confirmed all but 29. Since 1900, the Senate has voted against only four nominees. However, judicial nominees have come under a different kind of scrutiny in recent years. From 1789 until 1925, nominees did not testify before the Senate. It was not until the early 1980s that Senate hearings were first televised. In general, nominees have been confirmed expeditiously: over 43 percent of all justices were confirmed within a week after their nomination.
For most of our nation's history, senators have voted to confirm judges primarily based on their qualifications. They had to be learned in the law and they needed to apply the rule of law in an unbiased manner. Consider the confirmation of Justice Antonin Scalia. Before his confirmation in 1986, Justice Scalia's judicial views were already well known. He had written extensively as a law professor at the University of Chicago and as a judge on the U.S. Court of Appeals for the D.C. Circuit. Many senators knew that Justice Scalia had political views starkly different from their own. Still, after just two days of testimony before the Senate, he was confirmed with a vote of 98-0. That Senate controlled by Democrats who often opposed President Reagan confirmed him because they looked to his qualifications as a judge, not on whether his political views aligned with theirs.
Over the last two decades, a disturbing trend has started. A number of senators have increasingly focused on the political views of judicial nominees. When these senators disagree with nominees' views, they vote against them no matter how well qualified they are. This partisan approach was set in relief when President Ronald Reagan's nominee, Judge Robert Bork, was rejected by a vote of 42-58. Politicization of the process continued during the confirmation proceedings for Justice Clarence Thomas, who was narrowly confirmed 52-48. By contrast, when President Bill Clinton sent two nominees to the Senate, despite their liberal beliefs, the vast majority of Republicans voted for them; and they were confirmed with votes of 96-3 and 87-9.
Since President Bush took office, some senators have intensified this political examination of nominees. Until a compromise was worked out last May, Democrats had taken the rare move of blocking a vote on many of the president's lower court nominees, despite the nominees' excellent qualifications. The worst abuse was the four year filibuster of our fellow Texan, Judge Priscilla Owen's confirmation to the U.S. Court of Appeals for the Fifth Circuit. She was extraordinarily well qualified, having served on the Supreme Court of Texas, and she had been endorsed by every major paper in Texas.
During the confirmation of Chief Justice Roberts, I was pleased to see the Senate move back toward its old mode of concentrating on a nominee's background and temperament. More senators seemed to acknowledge that Justice Roberts was undeniably well qualified for the position, whatever his political positions might be. He was confirmed by all Republicans and many Democrats with a vote of 78-22.
Now the Senate is taking up the confirmation of our fellow Texan, Harriet Miers. She has impressive qualifications. She distinguished herself as a lawyer in private practice, gaining 28 years of practical experience, culminating in her becoming the head of the firm Locke, Liddell and Sapp. She served as president of the State Bar of Texas. And most recently, she was the president's legal counsel in the White House.
Harriet Miers possesses important elements of diversity that promise to improve the court's ability to consider cases from disparate viewpoints. She would add the unique and pragmatic perspective of someone who has focused solely on the practical aspects of law, rather than from behind the bench. She will be just one of two women and just one of two southerners on the court. She will also be only the third Texas-born justice in the history of the court.
I hope to see senators from both sides of the political aisle concentrate on her ability to correctly apply the law. If they do, I expect the Senate will treat her with the same dignity that she, herself, has shown for so long, and make her our next Supreme Court justice.
October 7, 2005
http://hutchison.senate.gov/ccconstitution.htm