Questions that Demand Answers
EVEN before the dispiriting events of the past weeks, voices across the political spectrum called for reform of the judicial confirmation process.Some of those urging such a reevaluation are at bottom concerned about the larger issue of the direction of of the Supreme Court; others charge that the process has become too politicized. For those Democrats seeking change, frustration may result as much from divided government as from the process itself. The judicial selection process must give the president, the Senate, and the public enough information about the nominee to ensure that he or she satisfies basic criteria, while also preserving the independence, impartiality, and integrity of the judicial function. In weighing these considerations, we need answers to questions in several critical areas. * What should the balance of responsibility be in choosing judges? Should the presumption be that the Senate confirm nominees? Should the Senate be a co-equal partner with the president? Should the division of responsibility change depending upon the kind of appointment - Supreme Court, court of appeals, or district court? In short, what does "advice and consent" mean? * What criteria should govern the selection of judges? What role, for instance, should ideology play? Should criteria change depending upon the court to which the nomination is being made? * What, if any, institutional changes should the executive and legislative branches make in the way nominees are identified and then considered? What role should organizations such as the American Bar Association play? Can we learn something from the merit selection panels that exist in many states? * What kinds of questions are appropriate at the confirmation hearings? As federal appellate Judge Frank M. Coffin asked not long ago, "Is it possible to arrive at a consensus on the kinds of questions from legislators and answers from judges that properly serve the interests of the interrogators without infringing upon the dignity, impartiality, and the independence of the judicial nominee?" * What kinds of activities outside the formal processes of advice and consent are appropriate? What, for example, about the use of media campaigns dealing with the most sensitive issues of personal conduct? What about the use of executive sessions in such circumstances? To consider these issues, the Senate and the White House might consider creating a study group or commission, drawn from former and perhaps current judges, senators, executive branch officials, and others.