Two Little Words

Hey, boys and girls, let’s play “strict construction” with the words “advice” and “consent.’ 

Conservatives believe that every word of the Constitution should be “strictly construed” according to its “plain meaning” and the “original intent” of the men who wrote it. Every word, that is, except two: “advice” and “consent.” The plain meaning of these words is not hard to fathom, nor is their authors’ intent. Senatorial “advice and consent” on the president’s judicial nominations was a compromise between those who thought the president should appoint judges and those who thought Congress should do it.

At least when the White House is Republican and the Senate is Democratic, however, conservatives discover all sorts of doctrines in the word “consent” that are far from clear to the naked eye. Senators mustn’t consider the nominee’s ideology. They must never ask or consider how the nominee might vote on specific issues or cases. As for the word “advice,” fuhgeddaboutit. At Senate Judiciary Committee hearings on Tuesday about standards for approving judicial nominations (judging from the prepared testimony on the committee’s Web site), all the energy on the conservative side was about piling limitations on the Senate’s power of consent. Only a liberal suggested that maybe the Constitution is trying to tell us that presidents should seek the Senate’s advice in choosing his nominees.

Let’s straighten out a few concepts here. Ideology can mean the sum of your views on all political issues: welfare, taxes, trade with China, etc. Yes, of course, senators should not consider a would-be judge’s politics—except to assure as best they can that the judge won’t consider them either in his or her rulings. But ideology can also mean your specific philosophy on judicial matters: the role of precedent, the meaning of the 14th Amendment, and so on. And of course senators can and should inquire about this kind of ideology and vote yea or nay on that basis.

Conservatives generally accept this distinction. But they muddle it by presenting their own preferred judicial ideology—a flurry of bromidic phrases: “judicial restraint,” “strict construction,” “original intent”—as a piety beyond legitimate dispute. So any liberal challenge to a conservative nominee is automatically “ideological” in the bad sense, while every conservative challenge to a liberal nominee is based on philosophical principle.

The conservatives’ judicial philosophy is not beyond legitimate dispute. First of all, they themselves happily overlook it when it is inconvenient. “Advice and consent” is a ripe example. Affirmative action is another: Conservatives want judges to use the Constitution to overturn policies of the elected branches. They sincerely believe, no doubt, that this is a case where the Constitution speaks clearly and judicial restraint is inappropriate. But that’s the point: Their buzzwords don’t provide an unfailing guide even for them, let alone a beacon of truth so bright that the path it illuminates is the only one worth taking. Waving a wand called “strict construction” can’t fully illuminate purposely vague phrases like “cruel and unusual.” Invoking “original intent” won’t tell you what the authors’ original intent was about dealing with changing circumstances.

If “advice and consent” is entitled to anything close to its plain, original meaning, the Senate is perfectly entitled to scrutinize nominees’ judicial philosophies and to reject some on that basis. If President Bush doesn’t like it, he can start strictly construing the word “advice” and can really consult with senators beforehand. Scrutiny includes asking nominees their views and their reasoning about fairly specific legal issues, if not actual pending cases. Why not? After all, sitting judges write long opinions day after day telling us what they think about many issues that will come up again, but no one regards that as a problem.

Needless to say, it would be wrong, wrong, wrong for Senate Democrats to let considerations of sauce for the gander influence their thinking on this issue. President Bush would never let political considerations influence his judicial choices. When he campaigned last fall on a promise to nominate justices like Scalia and Thomas, he must have had in mind some other way in which those two gentlemen are alike.

As for eight years of Republican harassment and blocking of President Clinton’s nominees, Sen. Orrin Hatch revealed at Tuesday’s hearing that this is entirely a figment of your imagination. That’s right—it never happened! His “proof”: Almost as many Clinton nominees as Reagan nominees ultimately got confirmed. Of course, this says nothing one way or another about how many were blocked and had to be replaced.

Clint Bolick, director of legal affairs for the Vast Right-Wing Conspiracy and head of the so-called Institute for Justice, also testified Tuesday. Bolick noted that his organization didn’t oppose any of Clinton’s Supreme Court nominees. He did not mention his ferocious campaign against Bill Lann Lee, Clinton’s nominee for head of civil rights at the Justice Department. Ordinarily, a president’s choices for his own administration are thought to deserve more deference, not less, than his nominations for lifetime appointments to the independent judiciary. But an institute press release at the time (1997) argued that the advice and consent clause actually obliges senators to oppose nominees with erroneous views “when the stakes are high enough.” The stakes in this case were in essence that Bolick’s group favored judicial activism—judges overthrowing affirmative action plans—and Lee did not.

The Institute of Justice Web site describes it as dedicated to opposing “racial preferences” and “the welfare state” and as a “courtroom champion” for “free market solutions and limited government.” But Bolick testified Tuesday that “mere philosophical differences” shouldn’t play a role in the Senate’s approval of judges—and, what’s more, they never had. To start now would be “a sea change,” he said. Bolick quoted Democratic Sen. Patrick Leahy in 1997 denouncing the practice of “blue slipping”—individual senators blocking judicial nominees from their state. He didn’t explain why Leahy was so upset about something that didn’t exist.