Randall T. Shepard: Judiciary’s growing role leads to nominee scrutiny

July 13, 2018

ShepardIn an age when ads for a fall Senate election begin five months ahead of time, it’s not much of a surprise that the process of considering a president’s nominee for the Supreme Court will run just about as long.

Little need to warn about holding onto our hats. We’re in for the most contentious confirmation battle since 1987.

It wasn’t always this way. For about half the nation’s history, presidential nominations went straight to the Senate floor without any committee hearings at all. Until the early 20th century, the average time between a president’s transmittal of a nomination and a Senate vote was about a week. In recent decades, the average has been 2-1/2 months.

Even when the Judiciary Committee started to conduct hearings, about 1925, nominees frequently did not testify and take questions. As late as 1949, Sherman Minton of Indiana declined to appear. He was confirmed, anyway.

The longest delay from the 20th century was the 117 days that passed before the Senate confirmed Louis Brandeis in 1916. One of the brightest legal scholars ever, Brandeis was also the first Jew to be nominated. The judgment of history is that this delay was the product of religious animus. More on that later.

Why we have reached the present arrangements is a matter of some importance, as it reflects on the very nature of our three-branch distribution of powers.

A central reason for this shift is the long but nearly inexorable enlargement of the role the third branch has chosen to play, with virtual encouragement from the elected branches. It is visible nearly every week. Within the last few days, a federal judge in Tennessee ordered the state’s motor vehicle bureau to stop suspending licenses of drivers who had not paid court costs. On a broader scale, Judge Derrick Watson of Hawaii barred implementation of temporary rules affecting a short list of countries whose screening systems were inadequate to guard against terrorist travel.

Whether decisions like these are “correct” or “incorrect,” they demonstrate that the judiciary has come to occupy a greater portion of the decision-making space. Not quite the presidium, perhaps, but growing.

If the courts continue to expand their oversight of entities like the State Department and the Tennessee Legislature, it does indeed become important to know more about the views of nominees. It was once considered wrong to question nominees about where they stood on various issues the court might decide, but do not doubt that President Trump’s nominee will be asked about policies like campaign finance and regulation of abortions.

And some nominees might get grilled by Dianne Feinstein about their religious affiliation as possible grounds for voting no. I’d have thought that so many years after the Brandeis experience and the election of John F. Kennedy as the first Catholic to become president, we would be beyond that.

If some of this seems distressing, make no mistake that how the national actors play their roles can be affected by favorable or unfavorable public reactions. It might be that citizens speaking out can help foster a more reasoned and reasonable debate in the elected branches.

Closing on an upbeat note, Indiana should take some pride at the potential nominees who have Indiana connections. On the president’s initial list, Judges Amy Coney Barrett, Margaret Ryan, Thomas Hardiman and Federico Moreno all have the benefit of education at the University of Notre Dame. Candidates were interviewed by a vice president from Indiana, and the new justice will sit near a chief justice from Indiana. That’s for the better.•

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Shepard, formerly Indiana chief justice, now serves as senior judge and teaches law. Send comments to ibjedit@ibj.com.


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