The modern federal judicial nomination process is as follows:
When there is an open judicial position, the president nominates someone and typically consults with key senators before announcing his nominee. Once he announces his choice, the nomination is sent to the Senate Judiciary Committee where information, records and qualifications are found and researched. After this, the Judiciary Committee votes on the nomination and may either recommend that he/she be confirmed, rejected or may give no recommendation to the Senate. Then the Senate debates the nomination, with a vote of 3/5 in order to end debate. Then the Senate needs a simple majority to confirm the nominee. So in short, the Senate has the final say.
Due to the fact that a president is given the power to select nominees, the filling of judicial positions has become quite political. It is often not about who is the most qualified and impartial, but about ideologies and partisanship. These appointments are used as political playing cards in order to get ahead in the game. However, I do find the whole process appropriate. I believe it is beneficial to give the Senate the ultimate say in whether a nominee is actually confirmed or not.
Since there isn’t much hope to rid the judicial nomination process of partisan-based decisions, I believe the court needs to be political, but I also believe that some magic balance needs to be made. Perhaps we should have a fairly equal ratio of democrats to republicans. By doing this decisions can be made more rationally and through healthy debate. Nominating people like Elena Kagan is a poor decision because she is moderate. It is hard to decide on which side of issues she will fall, therefore she is in the middle and if we nominate people like that, conformity is bound to take effect. If all decisions are made unanimously, then there will be less chance for dissent, however dissent is often a good thing. For example, when the United States decided to invade the Bay of Pigs many of the president’s advisors had foreseen failure, but no one was willing to stand up in protest therefore they conformed and well we failed…miserably. While that does not have to do with the judicial nomination process, it still illustrates my point that dissent, therefore polarization, in the court is something that needs to be done if the judiciary is going to be political and be somewhat objective-ish. Just because a Supreme Court nominee has no outstanding political record does not mean that they are not political beings because we are all opinionated and political.
Since we are all opinionated, we are political whether we realize it or not. Therefore I do not think it should be the job of the president to try and hide this. I think by suppressing the myth of objectivity kind of undermines the American public. Are we really that naïve? Well I guess maybe, but I would hope not. I think we need to accept the fact that impartiality is most likely not going to happen, so by creating a partisan balance, we may hope to reach a more objective decision, rather than one decided by a single political party.
