Senator Byrd's remarks on Judge Alito
Obviously, something is wrong with our judicial nominations process, and we in the Senate have the power to fix it.
The Framers presumably had something better in mind when they vested the Senate with the authority to confirm “judges of the Supreme Court.” In fact, we know they did. In 1789, Roger Sherman of Connecticut defended the role of the Senate in confirming Presidential appointments. He wrote, “It appears to me that the senate is the most important branch in the government. . . . The Executive magistrate is to execute the laws. The Senate, being a branch of the legislature, will naturally incline to have them duly executed and, therefore, will advise to such appointments as will best attain that end.”
Alexander Hamilton also had high hopes for the Senate’s ability to render its advice and consent function. He proclaimed, “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union.”
Exactly what did the Framers mean when they gave the Senate the power to “Consent” to the confirmation of a judicial nominee?
Historically, a majority of the Framers anticipated that the Senate’s confirmation or rejection of a judicial nominee would be based on the fitness of the nominee; not on partisan politics or extraneous matters.
Based on these assumptions, the Framers presumably did not expect the Senate to spend its allotted time on a nominee staging partisan warfare instead of examining his or her qualifications.
Yet, the Framers probably also would never have expected that a Senator of a nominee’s own Party would refuse to ask the candidate meaningful questions. They certainly did not intend for Senators of the nominee’s own Party to sit silently in quiet adulation, refusing to seek the truth while smiling indulgently, thus accomplishing nothing.
The Framers expected the Senate to be a serious check on the power of the President. They clearly thought that the Senate’s confirmation process ought to be fair, impartial, thorough, and exhibit appropriate respect for solemn duty and the dignity of both the process and the nominee.
I regret that we have come to a place in our history when both political parties exhibit such a “take no prisoners” attitude. All sides seek to use the debate over a Supreme Court nominee to air their particular wish list for or against abortion, euthanasia, executive authority, freedom of the press, freedom of speech, wiretapping, the death penalty, workers’ rights, gun control, corporate greed, and dozens of other subjects. All of these issues should be debated, but the battle lines should not be drawn on the Judiciary. They should be debated by the people’s Representatives in Congress.
However, too many Americans apparently believe that if they cannot get Congress to address an issue, they must take it to the court! As the saying goes, “If you can’t change the law, change the judge!”
This thinking represents a gross misinterpretation of the separation of powers: it is the role of the Congress to make and change the laws; Supreme Court Justices exist to interpret laws and be sure that they square with the Constitution and with settled law.
A better understanding of the Court’s role would do much to diminish the “hype” that now accompanies the judicial nomination process. The role of the Senate in the Alito debate is not to push legislation, or to score points for those who either support or oppose specific legislative proposals. The purpose of the current debate is to evaluate the fitness of Judge Samuel Alito to sit on the highest Court of our land which includes his temperament and his intellectual ability.
In a perfect world this heavy Constitutional responsibility of the Senate would have little to do with Party affiliation.
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