The Role of the Senate in Judicial Confirmations
May 1, 2003Stephen B. Presser
For the last few weeks, a constitutional crisis has been brewing in the United States Senate. It is a constitutional crisis all but ignored by the public, but the resolution of this crisis is likely to determine the nature of federal jurisprudence for the next few decades. At one level, the struggle in the Senate is a struggle over one or two notable nominees to the lower federal courts, most particularly Miguel Estrada and Priscilla Owen, but, at a deeper level, the struggle is over what many of the Senate Democrats have called “judicial ideology,” by which they mean a disposition to decide particular cases in a particular manner. For the first time in memory, in public, one political party, the Senate Democrats, has taken the position not only that judges should be picked based on their preference for designated outcomes in cases that might come before them, but also that the Senate ought to be an equal partner in picking judges and that nominees who come before the Senate have a burden of persuading sixty Senators (the number necessary to cut off debate in the Senate), that they are worthy of ascension to the bench.