Should the Senate refrain from voting on SCOTUS nominees on ideological grounds?

[Torie]

If the word of politicians were their bond, would you favor a deal where the Dems agree to not oppose Pub SCOTUS nominees on ideological grounds, if the Pubs in return agreed to do the same with Dem SCOTUS nominees? In other words, we go back to the "good old days" were nominees who were deemed competent and of good judicial temperament were as a matter of course confirmed?

In the current environment, where everything is all ideological all the time, and with the Dems concerned that the Pubs have a structural advantage in controlling the Senate, we now are seeing both here and elsewhere rather drastic Dem prescriptions about what to do about it, from court packing, to state creation and bifurcation, and so forth, none of which in my view are going to get very far (and in my view should not get anywhere at all). So the genie is out of the bottle. Assign blame where you will. But assuming that it could be done, in a more perfect world, would you favor sticking the genie back in the bottle? By doing that, it is the POTUS that has effective control, and when it comes to POTUS, the parties do have a pretty level playing field, so the Pub structural advantage goes away.

[Dereich]

Something Something Merrick Garland.

[emailking]

I don't think ideology should be a factor. Maybe in extreme cases. I think the Senate's consent should be a check on the President appointing someone unqualified or unreasonable. I'd be for the deal if both sides actually stuck to it. But they're going to have different views on what's reasonable, what's qualified etc. and may just keep stretching the lines when it's a convenient substitute for an ideologically based opposition. I guess that's how we got where we are.

[Virginiá]

No, not exactly. It's been my belief that the Senate majority party has every right to demand a "moderate" (center-right / left) justice, but it shouldn't go beyond that (eg: unreasonable to demand a completely centrist justice, or justice from the opposite ideology of the president, however you want to measure that).

If in the majority, Democrats would be completely within the realm of reasonableness to vote down someone like Scalia or Thomas, for instance. And I wouldn't blame Republicans for voting down someone like Thurgood Marshall.

The Supreme Court has incredible power to sharply change the the rules and levels of power that govern this country. It seems downright absurd to me to not take into their account their views when deciding whether to confirm.

[Torie]

No, not exactly. It's been my belief that the Senate majority party has every right to demand a "moderate" (center-right / left) justice, but it shouldn't go beyond that (eg: unreasonable to demand a completely centrist justice, or justice from the opposite ideology of the president, however you want to measure that).

If in the majority, Democrats would be completely within the realm of reasonableness to vote down someone like Scalia or Thomas, for instance. And I wouldn't blame Republicans for voting down someone like Thurgood Marshall.

The Supreme Court has incredible power to sharply change the the rules and levels of power that govern this country. It seems downright absurd to me to not take into their account their views when deciding whether to confirm.

I don't think that is a stable system, even if the Senators tried to implement it in good faith (and getting the parties to agree what is a centrist mainstream judicial philosophy will be no easy task). And over time, if the Pubs controlled the Senate mostly, when the Pubs also held POTUS, there would be conservative nominees confirmed, and when there was a split, they would be moderates. Over time, the conservatives would tend to be a majority. If POTUS had the say, then the Dems would not have that deficit, and the system is much easier to follow and implement.

[Virginiá]

No, not exactly. It's been my belief that the Senate majority party has every right to demand a "moderate" (center-right / left) justice, but it shouldn't go beyond that (eg: unreasonable to demand a completely centrist justice, or justice from the opposite ideology of the president, however you want to measure that).

If in the majority, Democrats would be completely within the realm of reasonableness to vote down someone like Scalia or Thomas, for instance. And I wouldn't blame Republicans for voting down someone like Thurgood Marshall.

The Supreme Court has incredible power to sharply change the the rules and levels of power that govern this country. It seems downright absurd to me to not take into their account their views when deciding whether to confirm.

I don't think that is a stable system, even if the Senators tried to implement it in good faith (and getting the parties to agree what is a centrist mainstream judicial philosophy will be no easy task). And over time, if the Pubs controlled the Senate mostly, when the Pubs also held POTUS, there would be conservative nominees confirmed, and when there was a split, they would be moderates. Over time, the conservatives would tend to be a majority. If POTUS had the way, then the Dems would not have that deficit, and the system is much easier to follow and implement.

Fair points. I suppose it would be more doable if the constitution was amended to require 60 votes to confirm a justice. It's not guaranteed to stop party-line votes, but parties rarely control >= 60 Senate seats, so it would probably work more often than not.

Anyhow, this is more of an idea I would prefer but I guess not necessarily one that would be reliable.

[Indy Texas]

There's no way to do this.

(1) It's so easy for one side to "cheat" - i.e. the Democrats abide by the rule when there is a Republican POTUS, and then the Republicans don't when there is a Democratic POTUS.

(2) SCOTUS confirmation votes are always going to be subjective. You can always find someone who will say, "I'm not voting against them because of their ideology. I'm voting against them because of XYZ."

You'll have cases like Harriet Miers, who, regardless of how you felt ideologically, simply was not qualified to serve on the Supreme Court.

[Chancellor Tanterterg]

Absolutely, but only in a perfect world where such a thing were actually possible and enforceable

[Hammy]

They should, yes. But it's realistically impossible.

[Green Line]

We should just completely reshape the way we nominate justices and take it out of the hands of Congress.  The current Supreme Court members should come together and unanimously present a nominee of their choice to the Congress.  That way its bipartisan and we know the nominee is actually qualified.

[Alabama_Indy10]

They should, yes. But it's realistically impossible.

[Sestak]

Prisoners’ Dilemma, Torie. We’re past the point of no return.

[TJ in Oregon]

I think the Supreme Court should start by refraining from voting on ideological grounds and only strike things down that are against the literal meaning of the text of the constitution, interpreted narrowly. If you want to rescue the nonpartisan authority of the Court, that is the only way.

[Former Dean Phillips Supporters for Haley (I guess???!?) 👁️]

A friendly agreement is a nice idea, in the same way that a box of chocolates is nice, but just isn't going to cut it. To actually fix the problems here, the first step is to acknowledge that they are actually deep and serious problems that require a deep and serious solution. We need either a well-thought out and comprehensive Constitutional Amendment, or else some other similarly impactful fundamental change through some other means. The specifics need not be pre-determined, but should be such that both Democrats and Republicans can agree in good faith that it is a fair and neutral system that will result in a well functioning system for judicial nominations and related matters.

If one side is simply unwilling to agree to do this at all (I presume that if that applies to any side, it would be the Republicans), then the other side will have no choice but to force through a solution as soon as they have the power to do so - but should do so in such a way that it is actually fair and neutral, and such that upon reflection, fair-minded people on the other side will recognize that at least after the fact.

[NewYorkExpress]

I think we're at the point where the Senate shouldn't bother voting at all for any appointee for any President, given how partisan the process is.

I'm wondering if a constitutional amendment to remove the Senate's "advice and consent" powers is necessary.

[emailking]

We should just completely reshape the way we nominate justices and take it out of the hands of Congress.  The current Supreme Court members should come together and unanimously present a nominee of their choice to the Congress.  That way its bipartisan and we know the nominee is actually qualified.

As long as they could only select from District and Circuit judges (so that they were once upon a time appointed by a different branch of the Federal Government) that could work.

[DC Al Fine]

I think the Supreme Court should start by refraining from voting on ideological grounds and only strike things down that are against the literal meaning of the text of the constitution, interpreted narrowly. If you want to rescue the nonpartisan authority of the Court, that is the only way.

As always its Justice Blackmun and his penumbra nonsense's fault.

[Person Man]

Asked and answered.

[RaphaelDLG]

No they shouldn't, and it's totally unenforceable to try to make them do so.

[The Mikado]

By "refrain from voting" do you mean literally refusing to vote (a la Merrick Garland) or voting No and killing the nomination ( a la Robert Bork)? I feel the two situations are different and the latter is far more honest, and that there wouldn't be quite as much rancor on the Democratic side if the GOP Senate had just voted "no" on Garland's confirmation in 2016 rather than refuse to even give him a hearing.

[Attorney General & PPT Dwarven Dragon]

No. SCOTUS nominees do not have to follow precedent, therefore they essentially act as a group of 9 Kings. We should seek to afford the President some deference, and to that end I have said there are names on Trump's list that would receive my support, but if we have several serious concerns with one's Judicial Philosophy, as I did with Gorsuch and Kavanaugh, then Senators should vote No.

With respect to lower courts, I am generally willing to give nominees a lot more leeway, especially with respect to district courts, because they are bound by higher courts precedent. To that end, I support(ed) a number of circuit and district court nominees that passed the Judiciary Committee on a party line vote. Even at the district court level however, there are exceptions from time to time (*cough* Thomas Farr, Wendy Vitter, Patrick Wyrick *cough*) and therefore we should not have a blanket rule.

[Slander and/or Libel]

If this is the standard you'd prefer, it seems like the senate would have next to no agency to give advice and consent. Why not just have an algorithm? If we want the senate to have a role, there's basically no way to proscribe it like this.

[fhtagn]

They should, yes. But it's realistically impossible.

[Progressive Pessimist]

No. Let's not f*** around and pretend that being a Supreme Court Justice is about anything more than imposing your political agenda on the nation. This is true of Justices on any side of the political spectrum. "Judicial activism" is unavoidable.

[MarkD]

No. Let's not f*** around and pretend that being a Supreme Court Justice is about anything more than imposing your political agenda on the nation. This is true of Justices on any side of the political spectrum. "Judicial activism" is unavoidable.

Given the behavior of the Supreme Court for the last several decades, that's true, but it does not inevitably have to be that way. We have had a few Supreme Court Justices who were dedicated to doing their job objectively and did not allow their political ideology to infiltrate their decisions. I'm referring to Oliver Wendell Holmes, Benjamin Cardozo, and Hugo Black. On the Circuit Court of Appeals there was Learned Hand. I think it is possible to get people like that appointed to the Supreme Court these days, if we want and expect the POTUS to select people like that.