Supreme Court power play: Assessing the Appropriate role of the senate in the confirmation process

views are innocuous because the President is unable to predict a Justice's long-term voting trends.66 This premise, however, is not supported by history67 or by empirical studies on the policy impact of presidents' Court.nominations68 and belittles the intrusion on the Senate's constitutional role. Lively concurs on this point, asserting:

The argument that policy oriented inquiry is unlikely to enable the Senate meaningfully to assess long-term predictability also is unpersuasive. A president's agenda for instance may be relatively short term. Immediate goals, such as Franklin Roosevelt's objective to fashion a Court sympathetic to New Deal legislation, may be at least as significant as quality of service over the long run.... The suggestion that policy-oriented Senate review is unnecessary because performance is unpredictable . . . is misplaced and perhaps fosters a false sense of security The unpredictability premise invites not only deferential review, but also effective displacement of the Senate's constitutional function and unprecedented enhancement of executive power and influence.69

Support for this position can be found in the success of the Nixon/Reagan appointments in building a "law and order" Court. When presidents have attempted to influence the Court through nominations, their aims usually have been achieved to a significant degree.70 Thus, executive screening processes yield sophisticated performance predictions that threaten the neutrality of the judiciary.71 It is only through open debate and a system of checks and balances between the executive and the Senate in implementing their concurrent selection responsibilities that judicial independence can be maintained.72

B. Senatorial Standards for Rejection of Supreme Court Nominees

Much of the debate on the appointment-confirmation controversy has concerned the standards for Supreme Court nominee fitness that are to be applied by the Senate in deciding whether to reject or to confirm a presidential nominee.73 As noted previously, Article II of the U.S. Constitution promulgates no criteria restricting the reasons for which a Supreme Court nominee can be rejected. Therefore, a senator may legally reject a candidate for any reason that he or she chooses, including politically based objections. However, such a wide-open standard has received little academic support,74 despite historical precedent of rejections due to partisan politics.75 The remainder of this subsection will examine some of the various standards for Senate rejection that have been promulgated and suggests that the senatorial standard for rejection should be wide-open to include rejections based upon partisan politics and ideological opposition.

Commentators and confirmation participants have had a field day proposing various standards for evaluating Supreme Court nominees that they believe the Senate should confine itself to or at least be guided by.76 During the confirmation hearings of Robert Bork, Senator Mitch McConnell (R-Kentucky) set forth what he contended were the appropriate criteria for assessing Supreme Court nominees. They included: (1) judicial competence, (2) sufficient level of achievement or distinction, (3) judicial temperament, (4) no violation of existing standards of ethical conduct, and (5) a clean record in the judge's life off the bench.77 Former Senate Judiciary Committee Chairperson