Let the Supreme Court Nominee Stay Home

http://www.nytimes.com/2009/05/10/opinion/10carter.html

A short time ago, Justice David Souter announced that he would be retiring from the US Supreme Court. His retirement will create the first vacancy on the Court for President Obama to fill. Even now, the Obama administration is compiling a list of potential replacements, and vetting the candidates to see if they can stand up to the scrutiny of Senate confirmation hearings. Stephen L. Carter, a professor of law at Yale and sometime contributor to the New York Times op-ed section, makes the argument that although a nominee has to be confirmed by a majority of the Senate, nominees shouldn’t be expected to submit to confirmation hearings at all.

The only constitutional requirement for a Justice is that he or she will uphold the Oaths of Office by adhering to the United States Constitution as written. Justices are not supposed to make judicial judgments based on feelings, prejudices, or political beliefs. The entire point of confirmation hearings is to assess a 0.nominee’s feelings, prejudices or beliefs – with the expectation that they will be in line with the President that submitted the nominee. The president’s party uses the hearings to confirm that the candidate believes as they do. The opposition uses the hearings to show that the nominee has a warped sense of what matters.

With that in mind, Mr. Carter’s position is that the nominee’s almost always refuse to give meaningful answers to questions about judicial philosophy or how a particular issue should be decided. He also makes the argument that this position is right; lest a nominee commit to a position under oath only to have a change of heart as a justice on the court. This nearly uniform refusal makes the whole process of sitting before the Judiciary Committee seem pointless and silly.

History has shown us that you can’t guarantee what position a Justice will take. President Eisenhower was sorely disappointed in many of the positions taken by Chief Justice Warren. There have been other instances where Justices appointed by more liberal Presidents have unexpectedly shown a more conservative slant as well. A Supreme Court appointment is a lifetime appointment, with many justices serving in excess of 20 years. In many ways, a Supreme Court appointment is the most lasting legacy a President leaves; that is why Presidents must choose carefully, and wisely.