The Real Debate over the Senate’s Role in the Confirmation Process

The five Supreme Court nominations between 2005 and 2010 brought renewed attention to the Senate’s role in the confirmation process. This Note explores the debate over the Senate’s proper role in that process. First, this Note summarizes and clarifies the two traditional views of the Senate’s role, classifying them as the assertive view and the deferential view, and offers a new framework for understanding these views. This Note then traces the traditional arguments made by proponents of these views. It first examines the historical arguments, both from original understanding and historical practice; it then turns to pragmatic arguments about which view better accomplishes the purposes of the Senate’s participation in the confirmation process. Neither the historical arguments nor the pragmatic arguments resolve the issue of which approach to the confirmation process is better. By recounting these arguments, however, this Note reveals the underlying—and unspoken—difference between adherents of the assertive view and adherents of the deferential view: their conceptions of the relationship between law and politics differ widely. Adherents of the assertive view can fall on either end of a spectrum in understanding the relationship between law and politics. For some adherents of the assertive view, law is completely distinct from politics, so they believe senators should carefully ensure that judicial nominees understand this distinction and should vote only for those nominees who do and will respect it. For other adherents of the assertive view, law and politics are two sides of the same coin, so they think senators should aggressively inquire into the views of judicial nominees and should vote only for those nominees whose views comport with their own. Either way, the assertive view results in the same role for the Senate in the confirmation process. Adherents of the deferential view, by contrast, fall somewhere in the middle of the spectrum, believing that law is underdetermined and is shaped, but not totally controlled, by politics. Adherents of this view make certain that nominees have reasonable legal views, but they are more willing to vote to confirm nominees whose views differ from their own. This Note brings this important difference to the forefront in hopes of promoting more meaningful discussions about the Senate’s role in the confirmation process