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October 01, 2023 Criminal Justice Matters

Reassessing the Advice and Consent of the Senate to Judicial Appointments

J. Vincent Aprile II

Have the US Senate’s advice and consent hearings for nominees to the US Supreme Court failed in the past to evaluate adequately presidential nominees for character and integrity? Have these hearings primarily focused on attempting to elicit, either directly or indirectly, from the nominee how she or he would rule on particular federal constitutional issues without delving into the past behavior of the candidate?

The president “shall have Power . . . with the Advice and Consent of the Senate” to “appoint . . . Judges of the supreme Court. . . .” U.S. Constitution, art. II, sec. 2. “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Id., art. III, sec. 1.

As the standard for forfeiting a federal judicial position is the lack of good behavior, it should be both appropriate and necessary for the Senate Judiciary Committee to investigate how a nominee has conducted himself or herself in the past. This is not about dredging up past misinformation about a nominee, but instead is about ensuring that alleged past character indiscretions are adequately vetted to ascertain their validity or invalidity. To some extent, “what’s past is prologue” is particularly relevant in this type of situation, albeit not controlling. But the Senate Judiciary Committee’s decision not to fully investigate such allegations of character malfunctions is a failure to exercise due diligence in the advice and consent process. This type of defect deprives all the members of the Senate of sufficient significant information for their vote on the nominee, while leaving the public confused and unsure about the nominee’s qualifications for the position.

Without speculating on the ultimate outcomes of the claims of nominees’ past character deficiencies, the failure to fully investigate them reveals a breakdown in the advice and consent process. A complete investigation and airing of claims regarding the nominee’s alleged past character faults not only satisfies the high standard for senatorial consent, but actually prevents the nominee from being plagued throughout his or her judicial career, if approved, with unanswered questions about claimed character imperfections when the Senate advice and consent investigation is shut down prematurely. See, e.g., Justice (Doug Liman’s 2023 documentary film addressing allegations raised during Justice Kavanaugh’s Senate hearing).

The investigation of Anita Hill’s claims against nominee Clarence Thomas should not have been halted early, and the same is true of Christine Ford’s allegations against nominee Brett Kavanaugh. A full and complete investigation of those allegations may have revealed that the allegations were without substance or supported by competent evidence. Transparency and completeness should be the hallmark of Senate “advice and consent” proceedings on all judicial appointments, especially those for nominees to the US Supreme Court.

Conversely, questions probing whether a judicial nominee as a lawyer has represented criminal defendants or certain unpopular civil parties in litigation are not designed to plumb a lawyer’s character as an attorney’s representation of an accused or a particular corporate entity does not reveal a condonation or agreement with the conduct of the client. “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Model Rules of Pro. Conduct r. 1.2(b) (Am. Bar Ass’n 2023) (Scope of Representation & Allocation of Authority Between Client & Lawyer). Simply put, “representing a client does not constitute approval of the client’s views or activities.” Id., cmt. 5. These questions, rather than revealing bad past behavior by a lawyer nominee, expose the Senate questioner’s ignorance of legal ethics and this country’s judicial system. Although clearly posed for manifestly political reasons, that type of interrogation merely inflames the public about a nominee on an illegitimate basis.

General questioning about a nominee’s views on the nation’s criminal justice system, but not on specific criminal justice issues, whether constitutional or supervisory, should be welcomed by the nominee. Efforts by senators to determine through questioning the nominee’s commitment to ruling a certain way on specific legal questions place any competent and principled nominee in a difficult position. It is well recognized in established judicial conduct principles, such as codes of judicial ethics, that “[a] judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Model Code of Jud. Conduct r. 210(B), canon 2 (Am. Bar Ass’n 2020). Similarly, “[a] judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.” Id., r. 210(A).

Admittedly, there is no code of judicial ethics presently applicable to U.S. Supreme Court justices once they assume the bench. Yet these recognized judicial ethical principles should apply to nominees for appointment to the federal bench, particularly to the U.S. Supreme Court, even if not currently serving as a judge.

In this same vein, members of the Senate Judiciary Committee should question each nominee to the Supreme Court bench regarding her or his opinions about judicial ethics, including views on self-recusal, self-disclosure of potential conflicts and the obligation to avoid not only actual impropriety but even the appearance of impropriety. Model Code of Jud. Conduct, supra, r. 1.2. Nominees should embrace such inquiries.

Although the free exercise clause of the First Amendment protects an individual’s religious freedom, that does not insulate a Senate “advice and consent” hearing from ensuring that a federal judicial nominee’s religious beliefs would not constitute a disqualifying conflict of interest. Would the nominee have the personal intellectual freedom to decide a legal issue in a way that would conflict with her or his personal religious beliefs, or would those beliefs compel the nominee to rule in conformity with those personal religious beliefs? In the context of a trial, “[v]oir dire provides a means of discovering actual or implied bias and a firmer basis upon which” to exercise choices “intelligently.” JEB v. Alabama ex rel. TB, 511 U.S. 127, 143–44 (1994). This type of questioning applies equally to the Senate’s exercise of its “advice and consent” obligation. Judicial ethics recognize that a judge’s personal opinion, even if based on religious beliefs, may create a disqualifying bias in specific cases. “Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.” Model Rules of Pro. Conduct r. 2.2, cmt. 2 (Impartiality and Fairness). During the Senate vetting process, inquiries probing to what extent a nominee’s deeply held religious beliefs, whatever faith or creed, would impact the individual’s judicial decision-making, if at all, should be fair game.

A nominee should be open to and welcome questions that probe for any underlying biases that could influence judicial decisions. Although only aspirational, in the context of actual litigation, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” Model Code of Jud. Conduct r. 2.11, cmt. 5. Nominees should be willing before the Senate Judiciary Committee to discuss how they have examined their own personal views and beliefs and determined those factors would not influence their judicial resolution of certain legal issues, assuming that is the case.

Alexander Hamilton viewed the Senate’s advice and consent as “an excellent check upon a spirit of favoritism in the President and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or a view to popularity.” The Federalist No. 76, 386 (Alexander Hamilton) (Garry Willis ed., 1982). The advice and consent process was never intended to be a gatekeeper procedure for the Senate to approve only nominees that have judicial philosophies similar to the party that controlled the Senate, whether Republican or Democrat. The advice and consent process should assess the nominee’s knowledge, intellectual skills, and the necessary integrity to perform the judicial function.

As the Report of the Federal Courts Study Committee recommended in 1990, “[t]he President and the Senate should endeavor to select the most qualified candidates for federal judicial office, irrespective of party affiliation, but with due regard for the desirability of reflecting the heterogeneity of the American people.” Report of the Federal Courts Study Committee, at 167, ¶ A (Apr. 2, 1990).

Nominees also may be responsible for defects in the advice and consent process. When judicial nominees themselves wish to be branded as a certain type of judge who will rule a certain way, they are inviting the president and the Senate to select and approve them because their future judicial rulings can be predicted. This would appear to be the antithesis of the objective and unbiased judicial officer, dedicated to a fair and impartial ruling on the merits of every case.

The advice and consent process, particularly in the context of U.S. Supreme Court nominees, needs to be re-envisioned to return to a procedure that ensures presidential nominees have the integrity, ethics, knowledge, and dedication to serve on the nation’s court of last resort, after a comprehensive evaluation of the nominee’s past, including alleged character missteps.

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J. Vincent Aprile II

Lynch, Cox, Gilman & Goodman, PC

J. Vincent Aprile II, a practicing attorney in Louisville, Kentucky, was appointed by then Chief Justice Rehnquist to the 15-person US Judicial Conference’s Federal Court Study Committee from 1988 to 1990 and subsequently appointed to the nine-person Judicial Conference’s Committee to Review the Criminal Justice Act (the Prado Committee) from 1991 to 1993.