The Right to Ask
Reproductive Rights Depend the Senate's Ability and Willingness to Consider a Judicial Nominee's Ideology.

By Marcia Greenberger

Scholars and commentators across the ideological spectrum agree that it is appropriate, and indeed necessary, for senators to inquire into, and base their confirmation votes on, judicial nominees' positions and views on substantive areas of law. This is nothing new. There is ample historical precedent for the Senate to consider judicial philosophy in considering judicial nominations -- dating back to George Washington's nomination of John Rutledge as Chief Justice in 1795 and his rejection by the Senate on the basis of his views. The "advise and consent" language of the Constitution itself, and the history of the framers' adoption of this formulation, make it clear that the Constitution creates an independent role and set of responsibilities for the Senate in the confirmation process.

As in so many other ways, the framers of the Constitution were right. The judiciary, after all, is independent from the Executive and Legislative branches, and indeed is sometimes called upon to resolve disputes between the two. If the President were given a superior role in judicial appointments, it would upset the neutrality of the judiciary and the system of checks and balances of which it is a part. Unlike Cabinet members or other appointments to the Executive branch, judges do not work for the President or serve at the pleasure of the President only while he (or someday, she) is in office. So while it may be appropriate for senators to give deference to a President's choices of the personnel who will work for him and implement his policies in the departments and agencies of the federal government, it would be entirely inappropriate to give deference to the President's selection of judicial candidates.

The Standards Senators Should Apply

Senators hold the tremendous power and responsibility to "advise and consent" on federal judicial nominees. How they exercise that power and responsibility, the degree to which they are demanding and thorough in examining the records and views of the nominees that come before them, and the extent to which they are willing to assert their Constitutional prerogative to say "no" when appropriate, will have a tremendous impact on the lives of American citizens for many years to come.

In light of all that is at stake, and the Senate's constitutional responsibility to determine who will be entrusted with life tenure on the bench, the Senate must scrutinize the fitness of judicial nominees with extraordinary care. In addition to meeting the necessary requirements of honesty, integrity, character, temperament, and intellect, to be confirmed to a federal judgeship a nominee should be required to demonstrate a commitment to protecting the rights of ordinary American citizens and the progress that has been made on civil rights and individual liberties, including those core constitutional principles that protect women's legal rights under the Equal Protection Clause and the right to privacy (which includes contraception and abortion) as well as the statutory provisions that protect women's legal rights in such fundamental areas as education, employment, and health and safety.

Senators therefore have a duty to study a nominee's record and to probe during the confirmation hearing in order to form a judgment about what kind of jurist the nominee will be, based on judicial philosophy and the nominee's views on what are called "the large issues of the day." This does not mean asking a nominee for his or her personal views on questions of religion or morality or how he or she has voted on ballot measures in the privacy of the voting booth. But it does mean, as reflected in past practice, probing into a nominee's views on the correctness of important Supreme Court precedents establishing the right to privacy and its application in Roe v. Wade (1973), or the appropriate standard of scrutiny under the Equal Protection Clause for sex- or race-based classifications. A nominee's previous writings or statements should be taken seriously.

Carrying out the Senate's responsibility also means that if a nominee has little or no relevant record, he or she bears the burden of assuring the Senate of his or her commitment on key issues and principles. This is particularly important when, as is currently the case, there is a President in office who has made clear that he is looking for judicial nominees of a particular type, in this case those in the mold of Justices Thomas and Scalia. The White House and Justice Department have the opportunity and ability to thoroughly vet potential nominees, before they are sent to the Senate, to ensure that those nominees do indeed fit the President's judicial philosophy requirements. Thus, it is fair to assume that a judicial candidate who appears in his or her confirmation hearing to be a blank slate has revealed him or herself to be nothing of the kind. The Senate, then, must satisfy itself as to the nominee's views on critical issues. Nominees who refuse to provide insights into their judicial philosophy have failed to meet their burden.

A Case in Point

These points can be illustrated with a brief look at the confirmation hearings of Clarence Thomas to the Supreme Court (before Anita Hill's allegations of sexual harassment surfaced), and specifically what happened when he was asked about his views on Roe. Then-Judge Thomas had a prior written record of his views on Roe but attempted to explain them away during his hearing. Asked about his enthusiastic praise of an antiabortion polemic by the Heritage Foundation's Lewis Lehrman he explained that he had merely skimmed the article and was praising it for a different reason. Other writings he disowned by explaining that he wasn't a Supreme Court Justice when he wrote them, so they had no relevance to what he would do on the Court. At the same time, Justice Thomas repeatedly insisted that he had no ideological agenda on the right to choose and had a completely open mind. Others pressed him again and again, and he simply refused to say what he thought.

In the face of all of these assurances of a completely open mind, a mere eight months after this testimony Justice Thomas joined Justices Rehnquist, Scalia, and White in a Rehnquist opinion that said, "We believe that Roe was wrongly decided, and that it can and should be overruled consistent with our traditional approach to stare decisis in constitutional cases." And he has not wavered from this view. Just last year Justice Thomas wrote that Roe was "grievously wrong."


The stakes are too high -- especially on such a closely-divided Supreme Court, and Courts of Appeals that already reflect an imbalance to the right -- to allow nominees to walk away from their pasts or to shield their views and ideology from Senate and public scrutiny. Most dramatically, Roe v. Wade now has only a 5-4 majority in the Supreme Court. (And since the Supreme Court considers only a tiny fraction of the cases sent to it by the appellate courts, judges on the Courts of Appeals have enormous power.) No judicial nominee enjoys a presumption in favor of confirmation. Rather, as numerous legal scholars have shown, it is the nominee who carries the burden of convincing the Senate that he or she should be confirmed, and any doubts should be resolved against confirmation. No person has an entitlement to a lifetime seat on the federal bench, and if a nominee cannot clearly satisfy the Senate that he or she meets all of the criteria for confirmation, the American people should not be asked to bear the risk of entrusting that individual with the reigns of judicial power.

Editor's Note: The information in this article was first presented as testimony by Marcia Greenberger to the US Senate Judiciary Subcommitte on Administrative Oversight and the Courts in June of 2001.

Note: This article was originally printed in the NCJW Journal: The Fight for Choice (Spring 2002).