Some have suggested that Republicans are locked into voting for virtually any Obama Supreme Court nominee because they argued in the 1990’s that so long as the nominee was qualified, of good character, and possessed the required intellect and temperament, Senators were obliged to vote for confirmation. Ed Gillespie who assisted in the confirmation process of Justices Roberts and Alito takes a different view:

Republicans cannot accept the premise that it’s okay for liberals to vote against Supreme Court nominees who believe in a strict constructionist judicial philosophy but not okay for conservatives to vote against those who embrace empathetic activism on the bench.

The encroachment on executive prerogative is unfortunate, and its polarizing effect is unhealthy. But the shift in the balance of power from the presidency to Congress inherent in this approach is less troublesome than the inevitable leftward shift of our highest court if Republicans maintain the traditional standard while Democrats deploy an ideological one.

I don’t find that explanation entirely satisfying,  but he is right that the task for the Senate is not merely to check the judge’s transcripts or to get character references, although that sort of mundane legwork is necessary. It is rather to confirm that the nominee is able and committed to perform the role of Supreme Court justice. So what does that mean?

For those who contend the role of judging is distinct from legislating, the task for senators is to satisfy themselves on a number of key topics. These, I would suggest, are not substantive “positions” on matters of Constitutional law (e.g., What sort of gun control does Heller permit? What is the appropriate analysis for religious establishment cases?), although they may be helpful in teasing out the underlying issues. The heart of the matter is whether the justice comes with a political agenda or, alternatively, with  a commitment to judging.

For example, does the nominee harbor political or personal biases that will interfere with her role as a justice? Senators should do their best to determine if the nominee is wedded to political positions on affirmative action or guns or other topics that have, in the past, or will in the future prevent her from deciding cases according to the meaning of the Constitution and federal statutes and with an appropriate appreciation for stare decisis. Has the nominee in a lower court stubbornly ignored precedent in order to follow a certain political agenda? Has the nominee advocated legal interpretations  of controversial matters obviously at odds with a good faith reading of the case law? If so, that’s highly problematic.

Another key line of inquiry: does the nominee in fact understand the role of judges within our Constitutional system? If the justice is unmoored to text and inclined to impose her own ethical norms in the guise of “judging,” that suggests she’s better suited to another branch of government.

And likewise, senators should satisfy themselves that the nominee fully appreciates and embraces the meaning of the judicial oath (“I will administer justice without respect to persons, and do equal right to the poor and to the rich. . .”) If she truly believes she should be there to look after the poorer and the less fortunate, then senators may doubt she’s cut out for the job.

Well, you say, nominees are “clever” enough to give the right answers and get through. Perhaps so. But their body of work, if they have one, is often revealing. Moreover, one would hope that over the course of a probing confirmation hearing, the senators can satisfy themselves that the answers are heartfelt and not given with fingers crossed. There is no recourse, certainly, if the nominee prevaricates and extols her devotion to judicial humility and textual scholarship, only to chuck the mask of impartiality once she gets the final Senate vote tally. But the exercise is itself important both to educate the public about the role of the courts and to impress upon the future justice what, in the estimation of the senators, is the proper role she is to undertake.

And Gillespie, I think, misses a key point. We haven’t had a justice who overtly expressed his or her devotion to untrammeled judicial activism. And a justice who would now do so would mark a departure from past nominees and present ample grounds for opposing her confirmation. The president may have tossed the “empathy” card around either intentionally or not, but a nominee who seems comfortable playing that hand is one the senate should reject. That’s not what judging is about and that’s not the basis on which prior nominees have been confirmed.