Instead of turning the confirmation process into a war, Senators should make sure that the process is fair with a courteous hearing, respectful debate on the Senate floor, and then a simple up-or-down vote on confirmation. Fairness Isn’t Part of the Obstructionist Playbook

As President Bush deliberates on whom to nominate to fill the first Supreme Court vacancy in more than a decade, it’s worth contemplating the other side of the confirmation equation: the U.S. Senate.

For four years, liberals in the Senate tested strategies and tactics that they could employ to obstruct Senate confirmation of a Supreme Court nominee. And typically, their methods involve abusing the Senate’s traditional confirmation process. Nominees to federal appeals courts like Henry Saad, Miguel Estrada and Charles Pickering have been victims of their obstruction. So have nominees to executive branch posts like John Bolton.

So with the Senate set to consider a nominee to the Supreme Court, it’s worth considering what the Senate confirmation process should look like, and it is likely to be abused.

Once the President announces his nominee, the behind-the-scenes work will begin almost immediately. The Senate Judiciary Committee staff will begin researching the nominee’s public record and past legal work. Meanwhile, the FBI will conduct a thorough background investigation. The American Bar Association will also meet and pronounce its rating of the nominee’s qualifications.

These initial tasks are the precursor to the first real opportunity for obstruction. In the past, the opposition sidetracked the nominations of Miguel Estrada, Charles Pickering and John Bolton by demanding reams of additional documentation. In every case, the information they requested was beyond the scope of a normal Senate process, unnecessary or simply irrelevant. But that won’t stop them. And their complaints are particularly absurd in light of the exhaustive research the Left boasts that it has already completed on every possible nominee. Nevertheless, expect all kinds of objections that the nominee or the White House is deliberately withholding information that Senators have a right and duty to review. And once they begin this gambit, they will raise their “information deprivation” objection throughout the process.

Even so, within a few weeks of the nomination, as the initial tasks are completed, the Judiciary Committee will hold several days of hearings. Committee members will make statements, and the nominee will testify and answer questions. Other witnesses who support or oppose the nominee may be called to provide their input.

The hearings are the great three-ring circus of the confirmation process, and there’s no doubt that the obstructionists will try and use them to maximum benefit. Through their statements and questioning, their objective will be to paint the nominee as “out of the mainstream” and “too far right,” just as they attempted to do with appeals court nominees Janice Rogers Brown and Priscilla Owen. The obstructionists will also try to goad the nominee into pre-judging high-profile questions facing the Court or making an embarrassing slip-up.

A few days after the hearing, the Judiciary Committee will deliberate and then vote on whether to send the nominee to the floor of the Senate with a favorable recommendation.  Once again, the obstructions will likely use this occasion to lay out their case against the nominee. Absent substantive objections, they will renew their objections and complain the nominee is not to their liking. They might even employ the insidious tactic that they used to smear appeals court nominee Henry Saad -- making veiled references to the nominee’s confidential FBI report, suggesting that there might be something unseemly. Of course, they will say, they can’t get into the specifics in a public forum, but to trust them that there’s a problem. What won’t be said is that the FBI report is a wide-ranging and intrusive investigation that contains interviews with virtually everyone the nominee has ever talked to. Much, if not most of the information in the report is unsubstantiated and unverified. That’s why under Senate rules and the norms of basic decency, its contents are supposed to be kept absolutely confidential.  Nevertheless, because Republicans hold a 10-to-8 advantage on the Committee, it remains very likely that the nominee will be sent to the full Senate.

Within a week or two of the Committee vote, Majority Leader Bill Frist should schedule floor debate and final vote on confirmation. Hopefully, Minority Leader Harry Reid will agree to a time limit on the debate. But if he refuses, it will be an indication that the obstructionists intend to deploy their most diabolical weapon: the filibuster. And Majority Leader Frist would have no choice but to move to end the filibuster by invoking the Constitutional Option. All the while, the floor debate on the nominee will continue, and the Democrats try to justify their obstruction by attacking the nominee or returning to the objections that they raised earlier.

Of course, it doesn’t have to be this way. And it shouldn’t.

The Senate is supposed to be a dignified institution. And few of its responsibilities are more important or solemn than its duty to provide “Advice and Consent” on a Supreme Court nomination.

Instead of turning the confirmation process into a war, Senators should make sure that the process is fair with a courteous and civil hearing, respectful debate on the Senate floor, and then a simple up-or-down vote for or against confirmation. Most important, the nominee deserves to be treated with the dignity and respect befitting a Supreme Court Justice. Senators should shun the name-calling, insults, smears and demeaning attacks that have lately besmirched the nomination process.

July 14, 2005
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