In Praise of the Supreme Court Confirmation Process

It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)

Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.

When John Roberts sat before the Senate Judiciary Committee in September 2005, he gave an opening statement in which he explained that after having served as a lawyer in the Justice Department, he entered private practice, where he argued cases before the Supreme Court. It was not until this point in his career that “I fully appreciated the importance of the Supreme Court in our constitutional system,” he noted.

 Here was the United States, the most powerful entity in the world, aligned against my client, and yet all I had to do was convince the Court that I was right on the law, and the Government was wrong, and all that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a Government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law, any rights are meaningless.

This is indeed a remarkable thing. We are fortunate that most of the time we can take the rule of law for granted. But there are times when this basic, essential principle is threatened, and at times like these we need find opportunities to stop and reflect upon its importance. The upcoming confirmation hearings for Judge Gorsuch will give us this opportunity.



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