Post Date: September 12, 2005
The following op-ed by Assistant Professor Jed Shugerman, Revisiting the Senate's 'nuclear' option, originally appeared in The Boston Globe on September 12, 2005.
A second opening on the Supreme Court raises the stakes for the Senate hearings and doubles the chances of the Senate going "nuclear": The Senate Democrats filibuster, the Republicans vote to change the rules for closing debate, and the Democrats grind the Senate to a halt. To paraphrase "Dr. Strangelove," it is time to stop worrying and love the bomb.
The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.
But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.
From all quarters, the Judiciary Committee hearings have been depicted as a game of lawyerly cat and mouse, a public charade of evasions. However, this portrayal misrepresents the recent history. The two most recent nominees, Ruth Bader Ginsburg and Stephen Breyer, were more forthcoming. Certainly no one would confuse their testimony with a special edition of constitutional confessionals on Oprah, but they provided relatively clear guides to their judicial approach, even on the most controversial questions. Some have suggested that the "Ginsburg rule" is a refusal to hint at future rulings, but in fact, her rule was: If I've written about it, I'll talk about it, and offer more than strong hints.
Obviously nominees cannot answer every detailed legal question, nor should they guarantee any outcomes. Lawyers and judges must be persuadable, but they also must have leanings and general perspectives on the great legal questions. An open mind is not an empty mind, but one that experiments with positions, reflects on conflicting ideas, and engages in honest debate.
Supreme Court justices have the unparalleled privileges of life tenure and the last word on all constitutional questions -- a necessary "countermajoritarian" power, but one that is in tension with democratic self-rule. Senate confirmation gives some democratic stamp of legitimacy to the court, but only if the nominees first have answered the Senate's general substantive questions.
Senate Democrats need to make these expectations clear and expressly announce this filibuster rule before the hearings begin. The more clearly the Senate now establishes its rules on using nukes, the less likely it will have to use them.
Moreover, Senate Democrats should declare from the beginning that there are no litmus tests, and they will reward candor. They should clarify that they may vote for a nominee who does not share all of their views, even on some of the most controversial issues. It might not be the senators' job to be unpopular, but sometimes it is the justices' most important duty. Open debate at the hearings informs the public about this duty, while runaround answers mock it.
Two openings with two candid nominees provide a rare window of opportunity for balancing ideology on the court. It is especially important for the chief justice to be able to foster dialogue, to build coalitions, and to compromise. Chief Justice Rehnquist may have been efficient, but at a cost to these vital aspects of the court's deliberations. If Judge Roberts engages the Senate in candid debate, it's a sign of a good chief justice and possibly more consensus on the court. But if Roberts, or the next nominee, obstructs the hearings, the appropriate response is to obstruct the nomination.
Jed Shugerman is an assistant professor of law at Harvard Law School.