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DISCRETION & DEFERENCE IN SENATE CONSIDERATION OF JUDICIAL NOMINATIONS

Caprice L. Roberts∗

The Judicial branch was thus born not on the lofty peaks of pure reason, but in the trenches of partisan politics.1

I. INTRODUCTION

Senators represent the will of people in their states. Yet senatorial role is arguably cabined by the constitutional function of advice and consent. Accordingly, the appropriate stance depends on how legislators view their legislative role vis-à-vis the Executive. Two competing approaches exist.2 The first is legislative deference to the President, in part by virtue of the President’s election by the people, and in other part due to the explicit, constitutionally enumerated power to make the nomination decision.3 Another position holds that a legislator possesses power to conduct a de novo review, substituting her judgment for the President’s.4 Neither approach is constitutionally commanded or ideal for protection of the public interest in a smoothly functioning federal court system.

∗ Professor of Law, Savannah Law School. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Florida State University College of Law for providing an opportunity to serve as a visiting professor and finalize this Article while teaching a stimulating mini-seminar course in Judicial Power & Restraint. I presented an early draft of this Article at the Southeastern Law School Association 2011 Conference Call for Papers: The Supreme Court Nomination Process—Is There a Litmus Test for Supreme Court Nominees?, orchestrated by Orin Kerr and Michael Gerhardt. Genuine thanks to the discussion forum participants, including Michael Gerhardt, David Fontana, Joel Goldstein, Chris Green, Jason Mazzone, Rocky Rhodes, and Lori Ringhand, who provided helpful feedback. I also benefited from a stimulating discussion after presentation of this work to the faculty of South Carolina School of Law. For suggestions and feedback, I am especially grateful to Tommy Crocker, Andy Siegel, and Andy Wright. Last, I am fortunate to have had the opportunity to learn details and receive insights about the modern political judicial nomination and confirmation process from government officials intimately involved. 1 William J. Brennan, Jr., Reason, Passion, and “The Progress of the Law,” 10 CARDOZO L. REV. 3, 7 (1988). 2 See infra notes 3–4 and accompanying text. 3 See generally John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 633 (1993). 4 See generally Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657 (1970).

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In a seminal article, Professors Cass Sunstein and David Strauss offered a cure to confirmation process flaws.5 Frustrated with confirmation gridlock and a conservative President’s nominations, they created the historical and policy case for a robust, independent senatorial advice and consent role.6 The Democrats controlled the Congress at the time.7 Professors Sunstein and Strauss forcefully suggested that “the Senate should assert its constitutional prerogatives more forcefully, unabashedly claiming an independent role” in that it “should insist that it has both the authority to ‘advise’ the President and the power to withhold its ‘consent’ because it disagrees with the nominee’s basic commitments on the kinds of issues that are likely to come before the Court.”8 After offering historical constitutional support, they concluded that the “Senate should now assume a self-consciously independent role” and “insist on its constitutional prerogatives.”9

Their provocative treatment garnered much reaction. For example, at the other end of the spectrum, Professor John McGinnis forcefully retorted that they misinterpreted the historical evidence and drew the wrong policy conclusions.10 According to Professor McGinnis, the text and history support “undiluted presidential responsibility for selection,” which will lead to better jurists.11 He posited that policy and constitutional force dictate “vigorous exercise of presidential power rather than an expanded role for the Senate as the best way to obtain outstanding and principled jurists.”12

The instant Article seeks to balance the interests at stake, regardless of which party holds power in the political branches. I argue for a degree of deference to the President. The amount of deference suggested stems from both a normative and practical perspective. The suggested path situates the proposal within the Constitution’s design as well as senatorial role with respect to advice and consent and constituency obligations. This Article examines the delegate versus trustee models of legislative approach to conclude that the trustee model most comports with the Senate’s advice and consent function. Ultimately, this Article proposes a judicial deference

5 See David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 YALE L.J. 1491 (1992). 6 See id. 7 A Visual Guide: The Balance of Power Between Congress and the Presidency, ABOUT.COM: US POLITICS, http://uspolitics.about.com/od/usgovernment/l/bl_party_division_2.htm (last visited Aug. 29, 2012). 8 Strauss & Sunstein, supra note 5, at 1493–94. 9 Id. at 1520. 10 McGinnis, supra note 3, at 634–35. 11 Id. at 636. 12 Id. at 638.

2012] Discretion & Deference 3 rubric that institutionalizes an ounce of deference that comports with the Constitution and the trustee model.

The deference model flows from the wisdom legislative actors should demonstrate in order to meaningfully check and balance the Executive while serving the public interest in efficiently confirming qualified jurists. Populating the federal bench with ideal jurists should be paramount to partisan infighting of the day. This Article offers concrete suggestions for early, meaningful dialogue and reasoned deference in order to best serve the public interest in a fully functioning federal judiciary.

Deference indicates giving the President and the people who elected him, as well as the specifically enumerated power granted under the Constitution, the benefit of the doubt. As such, when a legislator's presidential candidate does not win, the legislator ought not substitute her judgment for the President’s. Rather, the legislator ought to weigh in on acceptability of the President’s nominee rather than the preferential judicial choice. It gives the President a zone of discretion in which a senator should say, “I would never have picked the instant nominee, but the nominated individual is acceptable.” Deference also includes the ability to object, but ideally to do so with authentic, publicly elaborated grounds. Should this bona fide ability to object include the use of a litmus test?

II. THE LITMUS TEST QUESTION IS THE WRONG QUESTION

The nomination process is designed to result in neutral, or at least fair and faithful, arbiters and interpreters of the law, yet the inherent political process frustrates the service of this goal. For example, the oft-debated question—Is there a litmus test for Supreme Court nominees?13—focuses the debate on the wrong question. Litmus tests are a particular result of that political process, and in fact the term—litmus test—is itself a politicized term that tends to be used by opponents of the use of a litmus test as a justification to vote against, or fail to nominate, a judicial candidate whom one is inclined to support. While it employs the metaphor of a binary,

13 See Call for Proposals, 2011 Annual Meeting of the Southeastern Association of Law Schools, Discussion Group, The Supreme Court Nomination Process: Litmus Test Issues (Sept. 2010), available at http://sealslawschools.org/wp-content/uploads/2010/09/Seals-2011-Litmus-Call-Revised.pdf. The Southeastern Association of Law Schools (“SEALS”) Call for Papers for this Discussion Group limited the question to United States Supreme Court nominations. Id. My Article discusses litmus tests and the appropriate standard for congressional discretion and deference for federal judicial nominations generally.

4 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 scientific test, its use tends to be more normative and pejorative than descriptive.

Litmus tests are often used at the margins as a substantive ground on which to reject a nominated individual whose views are incongruous with the relevant stakeholder.14 As a political reality, litmus tests are an ends-based mechanism to justify voting against a nomination that a legislator already opposes or to whip up public opposition.15 I oppose litmus tests on two grounds: (1) As used, the tests emphasize binary decisions rather than a range, and (2) use of litmus tests is unlikely to generate genuine substantive debate on the approach of ideal jurists, including objective qualifications, judicial temperament, and judicial philosophy of decision-making.

The litmus test question is a provocative topic that garners popular attention much like judicial activism. For better or worse, the use of such terms attracts interest among scholars, the press, and potential readership. Quality scholarship exists under its catchy umbrella.16 My hope is that such buzz phrases generate an open audience to a rigorous debate on the merits. I will explain why the litmus test question misses the mark and then argue for a discretion and deference model in Senate consideration of judicial nominees.

The term litmus test has indeterminate meaning.17 Few admit to using such a test, even if they actually do apply it to oppose a judicial nomination.18 Even if a litmus test is like obscenity and we know it when 14 See Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.J. 783, 810–11 (2006). 15 See Michael M. Gallagher, Disarming the Confirmation Process, 50 CLEV. ST. L. REV. 513, 515–17 (2003). 16 See, e.g., MICHAEL C. DORF, NO LITMUS TEST: LAW VERSUS POLITICS IN THE TWENTY-FIRST CENTURY (2006); Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 LOY. L.A. INT’L & COMP. L. REV. 335 (2008); Roger Pilon, How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees, 15 REGENT U. L. REV. 41 (2003). 17 Pilon, supra note 16, at 42. 18 Instead, most senators explicitly claim to reject litmus tests. See, e.g., The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010) (statement of Sen. Patrick Leahy, Chairman, S. Comm. on the Judiciary) [hereinafter Leahy Statement], available at http://www.leahy.senate.gov/press/opening-statement-at-the-confirmation-hearing-on-the-nomination-of-solicitor-general-elena-kagan-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states (“No Senator should seek to impose an ideological litmus test or to secure promises of specific outcomes in cases coming before the Supreme Court. I reject the ideological litmus test that some would apply to Supreme Court nominees.”). But see, e.g., Senator Robert Dole, Address Accepting the Presidential Nomination at the Republican National Convention in San Diego (Aug. 15, 1996), available at http://www.presidency.ucsb.edu/ws/ index.php?pid=25960&st=&st1= (“I have been asked if I have a litmus test for judges. I do. My litmus

2012] Discretion & Deference 5 we see it19 despite legislative camouflage, litmus tests should not be encouraged. Litmus tests impose an unhelpful, one-dimensional frame for a process that should be multipolar in order to ensure thorough review of qualifications and judicial temperament to foster selection of ideal jurists.20

I oppose litmus tests on procedural and substantive grounds. Procedurally, litmus test is a flawed, meaningless term to be populated with meaning based on political whim. Even if the phrase has determinate meaning, senators would be loath to admit utilizing a litmus test to support or oppose a judicial nomination. Substantively, assuming some discernible content for the phrase, applying litmus tests fosters a binary analysis that will fail to ensure confirmation of jurists who exemplify the ideal judicial role in our constitutional democracy.

The term litmus test, like judicial activism, represents an empty vessel.21 Not without irony, the two phrases arise with frequency in the judicial nomination and confirmation processes.22 Both are flawed to the extent they mask true motives and genuine substantive evaluation.23 Judicial activism is flawed because it means whatever the speaker wants and is most often driven by political agenda.24 Litmus test is subject to the same criticism, although it may be possible to load the phrase with determinative content in a given context. Even if a litmus test possesses test for judges is that . . . their passion is not to amend, but to interpret the Constitution.”). Ronald Dworkin interpreted Senator Dole as intending to bar the type of judges who would favor Roe v. Wade or who would prohibit prayer in public schools. Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 FORDHAM L. REV. 1249, 1249 (1997). 19 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (regarding the definition of the type of obscenity the First Amendment does not protect—“hard-core pornography”: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”) (emphasis added). 20 See Samahon, supra note 14, at 823. 21 See, e.g., Lincoln Caplan, Litmus Tests, LEGAL AFF., Nov./Dec. 2005, http://www.legalaffairs. org/issues/November-December-2005/editorial_novdec05.msp; Mark Hansen, The Politics of Choosing Judges: Despite Power Plays and Litmus Tests, Judicial Selection Process Is Not So Bad, 82 A.B.A. J. 102 (1996); Pilon, supra note 16. 22 See, e.g., Stephanie Condon, Kagan and Graham Debate: What Is an “Activist Judge”?, CBS NEWS (June 30, 2010, 5:18 PM), http://www.cbsnews.com/8300-503544_162-503544.html?keyword= confirmation+hearing; Jon Davidson, The Anti-Gay Litmus Test?, HUFFINGTON POST (Aug. 3, 2010, 2:22 PM), http://www.huffingtonpost.com/jon-davidson/the-anti-gay-litmus-test_b_668757.html; Leahy Statement, supra note 18 (“Our path to a more perfect Union also included the rejection 75 years ago of conservative judicial activism by the Supreme Court and our establishing a social safety net for all Americans.”); Ed Whelan, Kagan, Aharon Barak, and the “Litmus Test” of Standing, NAT’L REV. ONLINE (May 28, 2010, 12:15 PM), http://www.nationalreview.com/bench-memos/56149/kagan-aharon-barak-and-litmus-test-standing/ed-whelan. 23 See Stephan O. Kline, The Topsy-Turvy World of Judicial Confirmations in the Era of Hatch and Lott, 103 DICK. L. REV. 247, 270 (1999). 24 See Caprice L. Roberts, In Search of Judicial Activism: Dangers in Quantifying the Qualitative, 74 TENN. L. REV. 567, 570−71 (2007).

6 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 substantive content, e.g., stance on recognition of same-sex unions, the content is most often hidden from view. A litmus test’s content may secretly lurk beneath the cloak of judicial activism. Commonly, a senator will claim judicial activism as the reason to reject a judicial nominee who fails a purported litmus test.25

In usage, judicial activism provides cover for litmus tests in the modern political climate. Judicial activism is the legislator’s official story, while a litmus test is his unofficial story. For example, if a judicial nominee is suspected to favor civil rights for same-sex couples, a legislator will ground opposition to the nominee in words of judicial activism. A nominee’s suspected support of same-sex marriage is less likely to be emphasized by a senator opposing the nominee than the nominee’s proclivity for usurping judicial role by making law. The legislator will likely say that he cannot support the nominee because the nominee will be a judicial activist who expansively interprets the Constitution. If we are lucky, the legislator will tie the objection to the actual issue.

Confirmation transcripts and media quotes provide insights into senatorial motivations,26 at least the motivations that the senators will publicly claim. Accordingly, the legislator may reveal during hearing questions or to the press that he opposes the nominee’s expected judicial interpretation of a Ninth Amendment privacy right extending to same-sex couples. This information would at least provide meaningful content for the public to evaluate the legislator’s stance. In all likelihood, however, he will not admit to using a litmus test. Instead, he will argue that the nominee’s constitutional interpretation of privacy is demonstrative of a judicial disposition toward activism that will lead to broad interpretation of other constitutional provisions, a disregard of precedent, and a penchant for making law and policy from the bench. Whether he admits using a litmus test, its use may be undeniable. That is, after all, one of the reasons why so many have called the judicial confirmation hearings Kabuki theater.27 A

25 See Kline, supra note 23, at 270. 26 For helpful, empirical guidance on what actually happens during Senate judicial confirmation hearings, see generally Lori A. Ringhand & Paul M. Collins, Jr., May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939–2009, 60 AM. U. L. REV. 589 (2011). 27 See, e.g., Richard Brust, No More Kabuki Confirmations, 95 A.B.A. J. 38, 39 (2009), available at http://www.abajournal.com/magazine/article/no_more_kabuki_confirmations/ (quoting then-Senator and Judiciary Committee Member Joe Biden (D-Del.)); Editorial, Kagan’s Kabuki Theater, WASH. TIMES, June 29, 2010, at B02, available at http://www.washingtontimes.com/news/2010/jun/29/kagans-kabuki-theater/. Professor Stephen Carter has long criticized the confirmation process for its nastiness and deception. See STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL

2012] Discretion & Deference 7 litmus test, open or hidden, is not the ideal metric for considering judicial nominations.

Litmus tests are keyed to particular, controversial issues.28 The underlying issues provide some grounding, but only with broad contours. Even if the Senator or an interest group describes the nominee’s anticipated objectionable position on a clearly framed issue, a litmus test would oversimplify the particular issue and any extrapolations as well as ignore all other relevant considerations. For example, a judicial nominee’s leanings on a particular issue, such as expected hostility to Second Amendment rights, do not translate into the necessary conclusion that the nominee, once confirmed as a justice, will overturn Supreme Court binding precedent.29 Use of a litmus test overemphasizes binary decisions rather than a range.30 Also, it is unlikely to generate genuine substantive debate on the approach of ideal jurists, including objective qualifications, judicial temperament, and judicial philosophy of decision-making.31

Senators should press judicial nominees on particular, controversial constitutional questions. But using a prediction or even an explicit answer on one political issue as the decisive issue to oppose a nominee disserves the public and the judicial system.32 A litmus test, like judicial activism, constitutes charged political rhetoric that baits the public into viewing the federal judiciary’s multifaceted docket in a skewed fashion and overly politicizes the jurist’s role.33 Senators deny using them.34 The judiciary is APPOINTMENTS PROCESS (1994). Elena Kagan, before becoming a judicial nominee and Supreme Court Justice, disagreed with Carter’s assessment of the reasons for the confirmation mess, but charged that judicial confirmation hearings of the recent era “lacked seriousness and substance” and instead “[took] on an air of vacuity and farce,” rendering the Senate unable to “either properly evaluat[e] nominees or appropriately educat[e] the public.” Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. 919, 920 (1995) (reviewing CARTER, supra); see also Michael J. Gerhardt, The Confirmation Mystery, 83 GEO. L.J. 395, 398 (1994) (reviewing CARTER, supra) (“The main flaw with Carter’s critique of Supreme Court confirmations is that the Constitution deliberately conditions judicial appointments on the political branches’ unrestricted discretion and, thus, does not immunize judicial independence from political reprisal in the confirmation process.”). 28 See Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105 YALE L.J. 549, 567–68 (1995). 29 See The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010), available at http://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY2.pdf. In Kagan’s confirmation hearing, she diffused a potential gun rights litmus test by responding that District of Columbia v. Heller, 554 U.S. 570 (2008), and Chicago v. McDonald, 561 US 3025 (2010), constituted binding precedent on the interpretation of the Second Amendment right to bear arms. Id. 30 See David R. Stras & Ryan W. Scott, Navigating the New Politics of Judicial Appointments, 102 NW. U. L. REV. 1869, 1889–92 (2008) (reviewing CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS (2007)). 31 Id. at 1890. 32 Id. 33 See id. 34 See, e.g., Leahy Statement, supra note 18.

8 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 not well served when the Executive cabins its nominations in fear of a senatorial litmus test or by the Executive’s application of its own litmus tests.

Judicial nominees ought to be evaluated on the totality of their record for quality of intellect, lack of bias, fairness, independence, respect of precedent, and overall judicial temperament. Senators are free to examine a nominee’s judicial philosophy as it may apply to the myriad of conflicts the federal court will face. But temperament and philosophy should outweigh a predicted response on a litmus test because Article III courts face complex cases and controversies for which temperament and philosophy will be more telling.35 Because litmus tests are procedurally and substantively flawed, we should address how to encourage meaningful interbranch dialogue and the appropriate level of legislative discretion and deference on judicial nominations.

III. A CALL FOR EARLY, MEANINGFUL DIALOGUE BETWEEN THE EXECUTIVE AND CONGRESS

This Article proposes a congressional discretion model for the advice and consent process for federal judicial nominations. By constitutional design, the Senate’s advice-and-consent role entails the inclusion of senators in both the preliminary consideration phase as well as the final up or down vote.36 The Executive’s stance determines the level and timing of congressional involvement. Congressional advice and consent has evolved to include elaborate Judiciary Committee machinations and hearings in the public eye before the ultimate vote.37 The confirmation process culminates in the public forum, and, to the extent that the public stays informed about the confirmation hearings and issues, senators are ostensibly accountable for their votes.38 During hearings, senators offer rehearsed, political reasons for supporting or opposing judicial nominations.39 Those reasons may be overtly stated or exhibited through the questions and comments of the Senator. This Article focuses attention on the preliminary stages of 35 See Richard D. Manoloff, The Advice and Consent of the Congress: Toward a Supreme Court Appointment Process for Our Time, 54 OHIO ST. L.J. 1087, 1100 (1993). 36 See U.S. CONST. art. II, § 2, cl. 2. 37 See generally HAROLD H. BRUFF, BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINISTRATIVE STATE 173 (2006) (discussing Robert F. Nagel, Advice, Consent, and Influence, 84 NW. U. L. REV. 858 (1990)) (“Increasingly in recent years, the Senate has aggressively asserted its power to advise and consent to the nominees.”). 38 See Nagel, supra note 37, at 868. 39 See, e.g., Kagan, supra note 27.

2012] Discretion & Deference 9 senatorial consideration of actual and potential judicial nominations, where a greater premium on discretion and deference exists and where honest, good-faith brokering has a greater opportunity to flourish.

Why is the preliminary stage so crucial? The preliminary stage is a platform on which minds are still open or at least more open. It is less public.40 The Executive often floats potential judicial nominations as trial balloons and may even do so in the media as well as with legislators.41 This early vetting process also includes the Executive’s security vetting as well as the congressional vetting, which may well include House members as well as state officials. Certainly, the Executive wishes to exercise its prerogatives and shape the future of the federal bench towards its liking, but the Executive has self-preservation and efficiency incentives to avoid public embarrassment for its judicial nominees and itself.42

The embarrassment the Executive seeks to avoid includes issue embarrassment and failure embarrassment. Issue embarrassment arises when a judicial nominee has a reputational red flag like a nanny-tax issue.43 The Executive must determine if the judicial nominee’s desirability and the likelihood of success on the merits of the nominee’s confirmation sufficiently outweigh the risks of the nominee’s personal and public embarrassment and failure. In order to make this critical determination, early and meaningful congressional vetting is key.44

At the same time, the Executive must brace for non-nominee generated roadblocks. For example, a senator could demand support for a farm bill in order to support, or even consider, a particular judicial nominee. These potential roadblocks are nongermane leverage issues. The Executive cannot let such considerations derail its judicial nominations strategy, but the Executive ignores political jockeying to its peril. Thus, in order to foresee and react to nongermane political leveraging, the Executive must have its eyes and ears open to congressional concerns during the early vetting process.

40 David A. Yalof, Dress Rehearsal Politics and the Case of Earmarked Judicial Nominees, 26 CARDOZO L. REV. 691, 702 (2005). 41 See id. 42 See id. 43 See Keith Epstein & Jane Sasseen, Taxes Bite Another Obama Nominee, BLOOMBERG BUSINESSWEEK (Feb. 3, 2009), http://www.businessweek.com/bwdaily/dnflash/content/feb2009/db2009 023_140803.htm. Tax-related issues have derailed numerous Executive nominations (not limited to judicial nominations), including nominees of President Obama: Timothy Geithner, Tom Daschle, and Nancy Killefer. Id. 44 See McGinnis, supra note 3, at 636.

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The hallmarks of a successful vetting process are dialogue coupled with the appropriate level of senatorial discretion and deference. Not all executives utilize the dialogue opportunity alike. For example, President Bill Clinton reportedly had early and often contact with Congress regarding judicial nominations.45 Not all presidents have engaged in significant interbranch dialogue regarding judicial nominations.46 It is up to the Executive to open a real door to dialogue and show that congressional concerns will be authentically considered. The real door happens in the form of early phone calls from the President’s White House Counsel to the Senator, face-to-face meetings between the Senator and the potential judicial nominee, and detailed White House Counsel memoranda outlining the qualifications and merits of the nominee.47 If the Executive includes senators and House members early and meaningfully in the vetting process, it is more likely that senators will fairly exercise their discretion and give a proper level of deference to the Executive on judicial nominations.

Early phone calls to senators and in-person meetings will foster meaningful interbranch dialogue. These closed meetings are more likely to result in honest brokering.48 Interestingly, a senator may theoretically plan

45 Michael J. Gerhardt, Confirmation Dreams, JURIST (2004) (Online Symposium, The Judicial Confirmations Process: Selecting Federal Judges in the Twenty-First Century), available at http://jurist.law.pitt.edu/forum/symposium-jc/gerhardt.php (“President Clinton regularly consulted with Republican leaders on judicial nominations, and even agreed at one point to Senator Hatch’s preferred nominee for a district court judgeship in Utah in order to smooth the way for the rest of his nominations.”). 46 See BRUFF, supra note 37, at 175. President Bush also ceased the special advisory role of the American Bar Association’s (“ABA”) Standing Committee on the Federal Judiciary, a committee that purported to offer nonpartisan evaluations of judicial nominees. Id. 47 The success of such supporting memoranda lies in persuasive advocacy in favor of the judicial nominee, which includes endorsements and letters of support from a broad range of political actors and nonprofit groups. A well-tuned letter of support can provide the Senator with reassurance and political cover. For example, a letter from prosecutors supporting a judicial nominee may enable a senator to support the nominee as part of the Senator’s tough-on-crime political platform. See, e.g., Letter from Adam Abensohn et. al., Law Clerks of Judge Sonia Sotomayor, to Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell, Chairman Patrick Leahy, and Ranking Member Jeff Sessions (June 1, 2009), available at http://www.whitehouse.gov/the_press_office/Letter-of-Support-to-Senators-from-Sotomayor-Law-Clerks. 48 This Article assumes that compromise is politically inevitable when congressional control is held by the minority party. Accordingly, the suggestions seek to stimulate more genuine, good-faith dealings in such compromises. Professor McGinnis articulated fundamental concerns with a constitutional interpretation that the “advice” role envisions early coordination between the Senate and the President: “Distorting a system to encourage compromise rather than conflict between the President and the Senate is antithetical to the self-regeneration of the republic.” McGinnis, supra note 3, at 637. His position does not comport with political reality and does not persuasively foreclose an interpretation of the advice role that includes the possibility of early dialogue.

2012] Discretion & Deference 11 to oppose a nominee, but decide on meeting her personally to support the candidate based on likeability—in addition to qualifications, of course.49 Chief Justice Roberts and Justice Sotomayor are two recent examples of Supreme Court nominees who reportedly impressed senators on a personal level in spite of partisan leanings.50 The more early access the Executive offers to senators in private settings, the better.

Such access raises a serious concern regarding a decreased level of transparency. Early on in the process, it may be wise to trade a level of transparency for candor and authenticity. This early vetting method is wise because senators may change their minds as noted, but otherwise this process will bring objections to the surface early. Then the Executive can address the objection, evaluate the embarrassment and likelihood of success factors, withdraw the nominee, or forge ahead with a plan to win confirmation through other votes.

To encourage good faith and fair dealing from senators, the Executive must also seek and consider Senate recommendations for judicial nominations. If interbranch dialogue is working, the Executive will contact the leading senator of the other political party in a state where there is a federal judicial vacancy. The Senator will consult with political constituents from the state as well as the other House and Senate representatives. The Senator will submit a few options for presidential consideration, and the President will move forward with one of those names as the nomination if other vetting goes smoothly. If the Senator is of the same party as the President, the President has more latitude to start the process with the Executive’s preferred names. If dialogue is working, the President will consult with the state’s senators before making the nomination official. In either scenario, pre-nomination vetting includes the Department of Justice, external validators and interest groups,51 and any senators who serve on the Judiciary Committee or whom the Executive anticipates may have concerns about the potential nominee.

Another key during the private portion of senatorial deliberations is the blue-slip process. The Senate’s use of blue slips to object to judicial 49 See Julie Hirschfeld Davis, Sotomayor Anecdotes, Manner Impress Senators, HUFFINGTON POST (June 13, 2009, 10:33 PM), http://www.huffingtonpost.com/huff-wires/20090613/us-sotomayor-s-job-interview/; Peter Westmore, Judge Roberts Impresses at U.S. Senate Hearing, NEWS WKLY. (Sept. 24, 2005), http://www.newsweekly.com.au/article.php?id=2403. 50 Davis, supra note 49; Westmore, supra note 49. 51 See generally BRUFF, supra note 37. As mentioned above, the Executive may solicit the ABA’s advice. Id. Although conservative corridors have more vocally criticized the ABA’s claimed nonpartisanship, the nature of the ABA’s power structure may pose difficulties for diversity candidates who possess nontraditional qualifications. See id.

12 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 nominations has interesting origins and consequences.52 Blue slips, per the Senate Judiciary Committee, honor senatorial courtesy.53 For the purposes of this Article, honest use of blue slips is critical given their potential dispositive impact:

When a judicial nomination is made, the chair of the Judiciary Committee sends “blue slips” (so called because of the color of paper used) to the senators of the nominee’s home state. If even one senator declines to return the slip, then the nomination is dead in the water, or further action will be extremely difficult, depending on which practice the committee chair decides to follow.54

Blue slips are geared to require a senator to “speak now or forever hold your peace,” although senators in practice change positions despite Executive reliance.55 In practice, an executed blue slip can effectuate a one-senator veto power.56 Per committee rule, the blue slip system means that “unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination.”57

The blue-slip process is not consistently honored. The Senate Judiciary Committee may deem it wise to redouble its commitment to honoring blue slips, especially if the majority party fears losing control in the next Senate.58 Senator Edward Kennedy, then-Chair of the Senate Judiciary Committee, first called public attention to blue slips in 1979 out of concern that blue slips may have played a role in frustrating the confirmation of diverse judicial nominees.59 Reform groups echoed concerns regarding the 52 See Brannon P. Denning, The “Blue Slip”: Enforcing the Norms of the Judicial Confirmation Process, 10 WM. & MARY BILL RTS. J. 75, 76−83 (2001) (tracing the historical origins and ramifications of blue slips); see also David Fontana, Government in Opposition, 119 YALE L.J. 548, 579, 616 n.102 (2009); David S. Law, Appointing Federal Judges: The President, the Senate, and the Prisoner’s Dilemma, 26 CARDOZO L. REV. 479, 493−97 (2005); David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 DREXEL L. REV. 521, 526 (2011). 53 Denning, supra note 52, at 76 (“The blue slip is the result of the Senate Judiciary Committee’s institutionalization of ‘senatorial courtesy.’”). 54 Id. 55 See id. at 97; Elliot E. Slotnick, Reforms in Judicial Selection: Will They Affect the Senate’s Role?, 64 JUDICATURE 60, 97 (1980). 56 Denning, supra note 52, at 77–78. 57 See Denning, supra note 52, at 77 (citing Memorandum from S. Comm. on Judiciary Staff to Sen. Edward M. Kennedy, Chair, S. Comm. on Judiciary (Jan. 22, 1979)), reprinted in U.S. CONGRESS SENATE COMMITTEE ON THE JUDICIARY, SELECTION AND CONFIRMATION OF FEDERAL JUDGES: HEARING BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, PART I, 96TH CONG., at 118−19 (1979)). 58 See Slotnick, supra note 55, at 99. 59 Denning, supra note 52, at 78−79.

2012] Discretion & Deference 13 pocket veto nature of blue slips.60 As Judiciary Chair, Senator Joseph Biden reinstituted commitment to the meaning of a blue slip in a 1989 letter to President George H.W. Bush:

The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate. If such good faith consultation has not taken place, the Judiciary Committee will treat the return of a negative blue slip by a home state Senator as dispositive and the nominee will not be considered.61

In the years that followed, the deference given to blue slips varied and controversy continued, but the Senate has retained their usage despite criticism.62 Formidable questions exist regarding the constitutionality of blue slips,63 but again their usage remains. Regardless of the rationale for retaining blue slips,64 they serve as a useful early warning system65 to senators and the Executive.

At minimum, senators will deliberate before issuing a blue slip.66 The potential severity of its use may encourage senators to explain potential objections to the Executive and allow the Executive to address any concerns. In the political reality, such conversations may come from a desire to bargain (hopefully not to extort). A bargain may be struck in a jurisdiction where two openings exist such that a senator will withhold a blue slip to foster consideration of the Executive’s preferred nominee and possibly promise support in exchange for the Executive forwarding a judicial nominee favored by the minority party. The Executive will only compromise if it truly wants the more controversial nominee and finds the minority party’s suggested nominee qualified and palatable. If the Executive fails to address the legislator’s concerns about a nominee or if no

60 Id. at 80. 61 Letter from Senator Joseph Biden to President George H.W. Bush (June 6, 1989) (on file with author). 62 Denning, supra note 52, at 82. 63 Id. at 88−90. 64 Id. at 82 (citing Slotnick, supra note 55, at 70−71) (discussing political scientist Elliot Slotnick’s tradition rationale, along with others’ theory of an early warning system). 65 Id. (discussing Slotnick, supra note 55, at 71) (“Others suggested that its presence preserved consensus and harmony among senators by offering an ‘early warning’ system of sorts that could help avoid embarrassing and acrimonious controversies from occurring either in Committee or on the Senate floor.”). 66 See id. at 81.

14 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 interbranch compromise results, a senator may opt to use a blue slip.

Even if a senator uses a blue slip to object, the Executive can proceed with open eyes regarding the risks of embarrassment and failure, assuming the nomination is not fatally blocked by the blue slip. If the Senate maintains this device, senators ideally would exercise the blue slip option rarely, and only when authentic substantive grounds exist to oppose a nominee as unqualified. Also, senators would provide some level of transparency with the public regarding the reasons for objecting, especially when the blue slip operates to foreclose the nominee from emerging from committee. Transparency would have to be a conscious choice because the historical operation of blue slips permits, if not fosters, secrecy.67 The potential application of these aspirations lies in the heart of the discretion and deference model the legislators are willing to follow.

IV. A SUGGESTION FOR SENATORIAL GOOD-FAITH DISCRETION AND AN OUNCE OF DEFERENCE

What is the appropriate level of senatorial discretion and deference in consideration of federal judicial nominations? The Executive exercises discretion at the highest orb for executive nominations, although bounded by senatorial advice and consent.68 Senators are often amenable to limiting their discretion and offering high levels of deference in advice and consent to executive-level appointments.69 A senator might say that she personally would not have selected the Executive’s nominee, but will defer to the will of the President for the executive-branch appointment. Federal judicial appointments, however, are another matter altogether. Senators will resist offering a high level of deference to the President on the ground that federal judicial appointments are for life.70 Accordingly, life tenure heightens the intensity of federal judicial nominations, and for good reason: the opposing political party will have to live with the appointed federal judge of the

67 See id. at 101 (advocating reforms to the blue slip process because “its operation has undermined the twin virtues of accountability and transparency that were seen as the strengths of the Constitution’s arrangement for confirming nominees to government office.”). 68 See U.S. CONST. art. II, § 2, cl. 2 (providing that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States . . . .”). For a provocative suggestion that the judicial branch has the constitutional power and should exercise such power over inferior court appointments, see Samahon, supra note 14. 69 William G. Ross, The Senate’s Constitutional Role in Confirming Cabinet Nominees and Other Executive Officers, 48 SYRACUSE L. REV. 1123, 1144 (1998). 70 Samahon, supra note 14, at 801.

2012] Discretion & Deference 15 current President’s choosing long after that President leaves office.71 Further, the Executive often focuses on younger and younger nominees to increase the longevity of the administration’s impact and legacy on the federal bench.72

The Constitution surprisingly sets no floor for judicial qualifications.73 The Framers could have included age, citizenship, and residency requirements for federal judicial nominations, as they did for congressional or presidential office, but they did not.74 A federal judge or justice need not even be a lawyer.75 “Consequently, the history of judicial appointments is one of presidential discretion within the limits of senatorial tolerance.”76 What a senator can tolerate during any presidential term is an inherently political enterprise.

Political machinations should not be divorced from the commands of Article II’s Advice and Consent Clause. Article II, Section 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate shall appoint . . . Judges of the supreme Court.”77 The clause entrusts the Senate with two functions. The advice role triggers consultation and dialogue. Scholars have disagreed as to whether the constitutional design intended advice before or after the nomination.78

The consent language speaks more clearly. It dictates a reviewing function over the President’s judicial nomination.79 Early coordination is essential to the success of the nomination and part of the Framers’ vision.80 Thoughtful deliberation is embedded in the framework.81 For the consent

71 BRUFF, supra note 37, at 173 (“Consider John Marshall, appointed by John Adams in 1801 and still on the bench three decades later, ready to bedevil a new kind of President, Andrew Jackson!”). 72 Nancy Scherer, The Judicial Confirmation Process: Mobilizing Elites, Mobilizing Masses, 86 JUDICATURE 240, 243 (2003). 73 BRUFF, supra note 37, at 173. 74 Id. 75 Id. 76 Id. at 173−74 (emphasis added). 77 U.S. CONST. art. II, § 2, cl. 2. 78 Compare McGinnis, supra note 3, at 635 (“As a dispassionate reading of the text and historical sources shows, the Appointments Clause assigns no prenomination role of a constitutional dimension to the Senate. To the contrary, the Framers wanted to assure accountability in appointments by making the President alone constitutionally responsible for the act of nomination.”), with Strauss & Sunstein, supra note 5, at 1495 (citing for historical support of their textual reading, Letter from George Mason to James Monroe (Jan. 30, 1792), in 3 PAPERS OF GEORGE MASON 1255 (William T. Hutchinson & William M.E. Rachal eds., 1970)) (“These words assign two distinct roles to the Senate—an advisory role before the nomination has occurred and a reviewing function after the fact.”). 79 Strauss & Sunstein, supra note 5, at 1495. 80 See id. 81 See id.

16 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 component, independent legislative judgment is no doubt a must. The Constitution’s plan for independent senatorial oversight should lead to genuine consideration of the merits of a nomination, rather than disingenuous political maneuvering and whimsical decision-making. Constitutional text ought to triumph over legislative whim.82 The trick, however, is to discern proper legislative judgment from overreach. If the constitutional line is too gray to inform this determination, wisdom should guide legislative action in the advice and consent role.

Are there normative guideposts that senators ought to follow? Significantly, “The constitutional history of the Senate’s confirmation power contemplates the rejection of nominees for political reasons.”83 It follows that senators may apply an overt or cloaked litmus test for the rejection of a judicial nominee. This Article is not about the parameters of senatorial power in opposing judicial nominations. Rather, this Article offers guides for the wisdom a senator ought to follow in good-faith consideration of judicial nominations.

To explore helpful guides, an exploration of judicial discretion and deference standards follows. Judicial guides may prove useful in forming the proper legislative philosophy and discretion in the judicial nomination process. I apply judicial philosophy and discretion models to legislative decision-makers. Senators, on the one hand, represent the will of people of their states.84 On the other hand, senatorial role is arguably cabined by the function of advice and consent.85 Accordingly, the appropriate stance depends on how legislators view their legislative role vis-à-vis the Executive.86

Two competing approaches exist on polar ends of the spectrum. The first is significant legislative deference to the President, in part by virtue of the President’s election by the people, and in other part due to the explicit, constitutionally enumerated power to make the nomination decision.87 82 William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 18 DUKE L.J. 1, 39 (1969) (citing MORTON BORDEN, THE ANTIFEDERALIST PAPERS 202 (1965)) (explaining constitutional foundational status over statutes: “[T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”). 83 BRUFF, supra note 37, at 176 (citing THE FEDERALIST NOS. 76, 77 (Alexander Hamilton)); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 790 (John Nowak & Ronald Rotunda eds., 1987); see also Henry P. Monaghan, The Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1207 (1988) (endorsing conventional wisdom that political objection to a judicial nominee is proper legislative behavior). 84 Monaghan, supra note 83, at 1208. 85 Letter from George Mason to James Monroe, supra note 78. 86 See, e.g., Monaghan, supra note 83, at 1207–08. 87 See Lawrence B. Solum, Legal Theory Lexicon 054: Standards of Review, LEGAL THEORY LEXICON

2012] Discretion & Deference 17 Such significant deference could go as far as allowing the President’s determination substitute for the Senator’s own determination or as far as giving the President’s decision substantial weight in the Senator’s decision-making based on the Executive’s presumed expertise from the time spent vetting and selecting the nomination.88 Another position holds that a legislator possesses power to conduct a de novo review, substituting her judgment for the President’s.89 Neither pole provides the optimal approach. In order to select the proper middle ground, I examine judicial deference models applied in the legislative context as well as the delegate versus trustee models of legislative approach.

There is a difference between de novo review and advice and consent. De novo review allows the Senator to make his own determination without regard to the Executive’s evaluation.90 This first-instance level of review fails to honor the connected nature of constitutional advice and consent to the Executive’s nomination. Advice and consent is something less than de novo review, yet senators are free simply to dislike a nominee.

The public pays little attention to federal judicial nominees short of Supreme Court nominees.91 Senators thus face little deterrence from perceived voter accountability.92 The judicial confirmation vote is representative democracy at work. Voters authorize their senators to represent their interests and ideals faithfully.93 Accordingly, “a [s]enator may, or even at some times in duty must, vote against a nominee . . . on the ground that the nominee holds views which, when transposed into judicial decisions, are likely, in the Senator’s judgment, to be very bad for the country.”94 But voters rarely hold their senators politically accountable based on an unfavorable judicial nomination vote.95 So ultimately a senator may vote her conscience as long as she has a colorable rationale to report to

(Aug. 27, 2006), http://lsolum.typepad.com/legal_theory_lexicon/2006/08/standards_of_re.html (citing Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 LEWIS & CLARK L. REV. 233 (2009)) (exploring the difference between “deference to authority” and “epistemic deference”). 88 See id. (citing STEVEN A. CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW (4th ed. 2010)); HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL COURTS STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS (Thomson West 2007); Joshua B. Fischman & Max M. Schanzenbach, Do Standards of Review Matter? The Case of Federal Criminal Sentencing, 40 J. LEGAL STUD. 405 (2011); Peters, supra note 87; Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 WM. & MARY L. REV. 679 (2002). 89 Peters, supra note 87, at 246. 90 See id. 91 William G. Ross, Op-Ed., Why the Supreme Court Is Not an Election Issue, and Why It Should Become One, JURIST (Oct. 21, 2004), http://jurist.law.pitt.edu/forumy/2004/10/why-supreme-court-is-not-election.php. 92 See id. 93 See, e.g., BRUFF, supra note 37, at 176–77. 94 Id. at 176−77 (quoting Black, supra note 4, at 657). 95 Ross, supra note 91.

18 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 her voters and other constituencies. Perhaps it is little more than the litigator’s “red face test.”96

Other constituencies, including interest groups, may well take intense positions on judicial nominations.97 If crossed, these groups could exact political pain in a senator’s state.98 Whatever these restraints impose, however, wisdom should dictate adopting better guides for exercising legislative discretion and deference.

Although senators can vote their conscience, they can act irresponsibly for purely partisan purposes.99 If the Executive has credibility in its interbranch dialogue on judicial nominations, senators will more likely fairly exercise discretion and deference towards future nominations.100 These are complex arenas, however, such that even a good-faith Executive interbranch dialogue may hold no avail if senators remain scarred from a prior administration’s moves or period of Senate control by the other political party. In such situations, senators may irresponsibly vote no on a judicial nomination as a matter of political payback. All one can do to avoid such consequences is to exercise the golden rule when one controls power. And following the golden rule does not mean blind deference.

Beyond de novo review, the other traditional judicial standards of review include the clearly erroneous and abuse of discretion standards.101 Under a clearly erroneous standard, the appellate court deferentially reviews the trial court’s factual findings for clear error.102 This deference model grants the Executive intense power and may be functionally difficult to administer or check given the debatable nature of what constitutes clear error.103 If clear error is limited to the Executive’s factual bases for a nominee, the functional objection is less problematic but the unchecked nature of presidential prerogative too great. An abuse of discretion standard would give the Executive too much discretion without appropriate checks

96 See Tom Dennis, Can You Pass the Red Face Test?, WORKPLACE INSANITY (Jan. 19, 2011, 12:16 PM), http://www.workplaceinsanity.com/2011/01/can-you-pass-red-face-test.html (explaining the “red face test”: “What this means is that you must be able to answer the questions responsibly without your face turning red.”). 97 See generally Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV. 1391 (2001); William G. Ross, The Senate’s Constitutional Role in Confirming Cabinet Nominees and Other Executive Officers, 48 SYRACUSE L. REV. 1123 (1998). 98 LAUREN COHEN BELL, WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE CONFIRMATION 63 (2002); see also Ross, supra note 97, at 1196–98. 99 For a forceful argument against senatorial political prerogatives in judicial confirmations, see generally Bruce Fein, A Circumscribed Senate Confirmation Role, 102 HARV. L. REV. 672 (1989). 100 See Ross, supra note 97, at 1143–47. 101 Solum, supra note 87. 102 See id. 103 Id.

2012] Discretion & Deference 19 and balances.104 Advice and consent must mean that senators may do more than review the President’s supporting rationale for abuse of discretion. Under such a lenient standard, a senator who would no doubt make a different determination must follow the President’s lead unless the President’s decision constituted a mistake greater than “mere error.”105 Again, the abuse of discretion model yields too much of the legislator’s constitutional role to the Executive.

Another judicial review model is the substantial evidence standard, when federal courts review administrative agency action to determine if the action is supported by substantial evidence.106 This model strikes closer to the ideal mark as it provides a level of deference to the Executive’s prerogative while enabling the Senator to engage in a meaningful review of the nature and weight of the supporting evidence.107 Of course the judicial review standard over administrative agencies includes Chevron108 deference, dictating that federal courts defer to agency interpretation of a statute as long as its interpretation is “reasonable” or “based on a permissible construction of the statute.”109 To analogize Chevron deference to Senate consideration of judicial nominations might mean that a senator should defer to Executive interpretation of how a nominee will apply the law as long as the interpretation is reasonable and based on a permissible construction.110

If this proposal has any traction, then the scholarly debate could further explore nuanced interpretations of the proper bounds of Chevron deference. Competing formulations exist for the proper interpretation of the constitutional responsibilities that flow from Chevron and the normative question about the ideal political theory to justify the administrative state.111 For the instant analogy, the constitutional question is more apt. One provocative interpretation provides that “the foundation for the Chevron doctrine is anchored in the separation of powers as manifested by the structure of the Constitution and Article III’s assignment of judicial powers,” and thus should operate “as a soft constitutional norm that . . .

104 See generally id. (discussing different standards of review). 105 Id. 106 Id. (discussing the “Chevron doctrine” resulting from Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)) (“The famous ‘Chevron doctrine’ requires federal courts to defer to an [agency’s] interpretation of a statute, so long as that interpretation is ‘reasonable.’”). 107 See id. 108 Chevron, 467 U.S. at 837. 109 Id. at 843; see also Solum, supra note 87. 110 See generally Mark Seidenfeld, Chevron’s Foundation, 86 NOTRE DAME L. REV. 273 (2011). 111 Id. at 274.

20 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 encourages courts to refrain from dictating outcomes in policy-laden decisions.”112 By analogy to the judicial nomination and confirmation process, senators would exercise Chevron-type deference as legislative self-restraint to refrain from dictating confirmation results.113 Such restraint would counsel the Senate to resist taking the primary role in populating the federal bench when that role creates serious potential for a senator to impose her policy preferences in lieu of the President’s preferences.114

The challenge is to find a path in which senators maintain a level of independence and deliberative responsibility without using their power to derail a host of qualified judicial nominations on partisan whim. A well-functioning judicial branch will be more attainable with a combination of deference and transparency in the confirmation process. Senators should utilize a Chevron model of restraint, coupled with elaborated, substantive grounds for rejection of a nomination. Assuming an administrative agency deference model possesses some merit for the senatorial consideration of judicial nominations, how does this model integrate with legislative role more generally under a delegate versus a trustee model of representation?

Under the trustee model of legislative representation, Edmund Burke advocated that an elected representative should consider all the evidence and then exercise his own esteemed, enlightened judgment, rather than sacrificing his opinion to his voters.115 A senator represents his constituency by making autonomous decisions in light of the greater common good and national interest.116 Should the representative adhere

112 Id. at 275. 113 See id. at 311. 114 Id. at 311 (articulating the case for Chevron as a doctrine of judicial self-restraint under the courts’ Article III responsibilities: “That restraint counsels courts to avoid taking the primary role in interpreting statutes when that role creates significant potential for a judge to impose her policy preferences and a superior forum for resolving policy disputes is available.”). The inherent risk in an analogy is that this article is taking great liberties in stretching a complicated framework focused on the court and superimposing it onto legislative function in a very different setting with distinct constitutional roles. When a system such as the confirmation process ceases to function efficiently and effectively towards the end goal that the Constitution intended—a well-functioning federal judiciary—creative applications for ideal normative approaches are worth the thought experiment. With respect to Professor Seidenfeld’s theory of restraint, it is more difficult to apply the second part of his analysis—whether there is a superior forum for resolving policy disputes—to the confirmation process. See id. Despite the potential lack of an exact fit for comparison, his interpretation of the Chevron doctrine offers a provocative starting point for deeper consideration of proper senatorial deference in the judicial confirmation process. 115 EDMUND BURKE, Speech to the Electors of Bristol, in 1 SELECT WORKS OF EDMUND BURKE: MISCELLANEOUS WRITINGS 10−11 (Edward John Payne ed., Liberty Fund 1999) (1874). 116 See id. at 11.

2012] Discretion & Deference 21 more closely to the voice of his people with regard to consideration of federal judicial nominations?

The delegate model holds that the representative acts based on the wishes of his constituency.117 The representative does not render an autonomous decision.118 Instead, he must be the voice of his constituency even if it conflicts with the voice of his own conscience.119 The majority of any representative’s constituency likely lacks distinct wishes with regard to most individual federal judicial nominees.120 His constituency may have wishes regarding the type of jurist they prefer, but in all likelihood, most voters are likely comfortable deferring to their elected official to consider the evidence and make the ultimate determination. Thus, the trustee model is both preferable and more realistic with respect to legislative action regarding federal judicial nominations.121

Whether the Senator exercises his own judgment under the trustee model or defers more significantly to his constituency, he may still attempt to show some level of deference to the Executive. The delegate model may make such deference more difficult because a mandate from his constituency may render the Senator’s hands proverbially tied, or at least provide political cover for not deferring to the Executive. The trustee model, which I maintain is preferable on independent grounds, provides for greater integration with a level of deference to the Executive’s determination.

The Senator may still exercise his own discretion in light of his thoughtful consideration of all the evidence, but he should weigh his leaning (i.e., his interpretation of the greater good for his constituency rather than a voter mandate of preference) against the supporting evidence the Executive offers for its judicial nomination. If the supporting evidence provides substantial support in favor of the nominee, the Senator should pause long and hard before issuing a blue slip or voting against the judicial nomination. If the Senator honestly maintains that the greater good will not 117 Id. 118 Id. 119 Id. 120 See Ross, supra note 91. Given that political election of state judges remains viable in numerous states despite national criticism, some percentage of voters are educated about state judicial selection and vote based on their preferences. Accordingly, education and voter preference are possible on the federal level; I maintain it is not the norm. See generally Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 DUKE L. J. 623 (2009). 121 Senatorial action remains subject to interest group liberalism where mediating institutions and groups signal to a member that they oppose a candidate. See Richard Briffault, Lobbying and Campaign Finance: Separate and Together, 19 STAN. L. & POL’Y REV. 105, 117 (2008).

22 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:1 be served, the Senator should feel free to vote his conscience under the trustee model but should also provide reasoned elaboration on why the judicial nominee will disserve the greater good or why substantial supporting evidence is wanting.

Ultimately, this Article favors a model of good-faith, relatively transparent discretion with a modicum of deference under a trustee model of representative democracy. First, the Executive must engage in meaningful interbranch dialogue with legislators. If this occurs, then legislators should return the gesture in kind. Each senator should engage in honest brokering, consider all the evidence, articulate grounds for concern to the Executive and eventually to the public, be open to persuasion if the Executive addresses legislative concerns, and ultimately vote her conscience in good faith after full and fair consideration of the evidence and with an ounce of deference to the President’s chosen judicial nomination. Life tenure and the import of the judicial branch’s enterprise no doubt heighten the level of legislative scrutiny compared to other Executive nominations. The legislator may still vote her conscience and oppose a judicial nominee, but let it be based on the President’s failure to muster substantial evidence to support the nominee rather than political whim.

V. CONCLUSION

Power politics saturate federal judicial nominations and confirmations.122 Dynamic influences are at play. The proposed discretion and deference model does not fully align with practical political decision-making. Nevertheless, this Article seeks to create persuasive precedent for the wisdom legislators ought to exercise. It proposes a guide for legislators to follow when the Executive has offered a meaningful opportunity for dialogue. I seek to foster thoughtful and honest consideration of judicial nominations, early articulated bases for objection, and greater transparency of genuine motives in the confirmation process. Such guides would ideally lead to a deeper discussion and evaluation on the merits of what constitutes an ideal jurist on the federal bench and the judicial nominee’s qualifications towards that end goal.

At the end of day, the legislator, alone, is answerable to her constituency and her own conscience. Multipolarity is the hallmark of the legislative branch. Each individual legislator must decide how to exercise

122 BRUFF, supra note 37, at 173 (“Control of nomination and confirmation lies much more in the realm of politics than of law . . . .”).

2012] Discretion & Deference 23 her discretion. However, if senators are exercising it within their sphere of authority but nevertheless unwisely, we have to convince the public of the legislators’ misguided approach and offer a convincing rationale for a viable alternative regardless of which party holds the Presidency and the Congress.