Changing Criteria for Judging Judges

Abstract

Professor Nagel and I agree that it is "appropriate" (in his words) that the Senate play a role in the confirmation process. We part company on the desirability of senatorial involvement. This brief essay explains why I am unpersuaded by Professor Nagel's negative view of the utility of a senatorial role and what benefits I see flowing from the Senate's scrutiny, over the past few years, of Presidential nominees. The United States Constitution states that the President shall appoint judges—"by and with the Advice and Consent of the Senate. . . ." As Charles Black explained some years ago, there are no "textual," no "structural," no "prudential," or no "historical" reasons to object to senators understanding the words of the Constitution—"advice and consent"—to authorize them to take a role beyond rubber stamping Presidential appointments. While sharing Professor Black's view that no constitutional impediments can be found to a senatorial role in the nomination process, Nagel nonetheless raises concerns about that role. Essentially, his claim is that senators ought to be wary of too much involvement in the nomination process. Nagel argues that while senators can (at a constitutional level) screen candidates, senators should not (at a practical level)—because of several problems that he identifies.