This morning, President Barack Obama announced the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States. While this may seem like the culmination of a long process, it actually marks just the beginning–really, the very first step–of the confirmation process laid out in our Constitution. President Obama’s aggressive confirmation timetable–he is demanding hearings and a vote before Congress leaves for its August recess–risks shortchanging the Constitution’s commands.
The Appointments Clause (in Section 2 of Article II) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” Nomination is only the first of these three steps.
The second is for the Senate to provide its “advice and consent.” John McGinnis describes the purpose of this requirement in The Heritage Guide to the Constitution:
The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason…. [T]he Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters.
That is the constitutional duty that the Senate must now exercise. This duty is not a “brake” or a “speedbump” in the confirmation process; rather, it is essential to ensuring that the President’s nominee has the principles, character, and temperament to take the bench on the High Court.
As the position of Associate Justice is one that wields (in this day and age) nearly limitless power, and as the tenure is lifetime, the Senate has a responsibility to go about its work with care and diligence. It should not delay, but nor should it be rushed.
Others have raised questions about Judge Sotomayor’s principles and character. As National Journal’s Stuart Taylor has observed, she has vocally advocated making policy from the bench and has denied that a judge can be objective in most cases. Moreover, she has stated that judges of different genders and races can and should rule differently in the same cases, with the same facts and law. Even today, this is an unusual principle.
Others, such as the New Republic’s Jeffrey Rosen, have called into question her character and, specifically, her temperament. Attorneys appearing before her consistently attest to being “bullied” and describe her as “domineering.”
Then there is the matter of the Ricci case, concerning New Haven’s discrimination against white firefighters, which she and two other Clinton-appointee judges attempted to bury by issuing a one-paragraph unreported decision. Even fellow Clinton appointee Judge Cabranes has stated that this maneuvering was unusual and improper.
It may be that these questions come to nothing, but that is for the Senate to investigate and determine. And with so many questions raised, that will take time. The President hopes to have his nominee confirmed by Congress’s August recess—an aggressive timetable. But that may not comport with the Senate’s constitutional role and responsibility.