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FUMARE

Law, culture, and Catholicism...up in smoke!

Monday, October 03, 2005

Undue Burden of Proof

Lyle Denniston from SCOTUSBlog posted this article entitled "The burden of proof may be heavy," in which he states, "When the Senate Judiciary Committee takes up the nomination of Harriet Miers to be an Associate Justice, she will have the burden of proving that she is qualified to join the Court and was not chosen on the basis of cronyism." When commenting on now Chief Justice Roberts then-upcoming confirmation hearing, Senator Charles Schumer, D-N.Y., made the same comments, as reported here: "The burden is on a nominee to the Supreme Court to prove that he is worthy, not on the Senate to prove he is unworthy."
Yet does, or should, the burden really lie with the nominee? Confimation hearings are not job interviews. The nominee has already been determined to be qualified by the man who picked him. And so, if already determined to be qualified, should not the presumption be in favor of confirmation?

An article in the Clevand State Law Review states, "Terms such as 'outside the mainstream' or 'burden of proof' are wholly inapplicable to a judicial nomination. The continued use of these terms, in any form or fashion, will allow Senators to easily reject qualified nominees for unjustified reasons." Michael M. Gallagher, Disarming the Confirmation Process, 50 Clev. St. L. Rev. 513, 548 (2002/2003) (footnotes omitted). I agree wholeheartedly, of course. Another law review article, which was part of a symposium entitled Judicious Choices: Nominating and Confirming Supreme Court Jusices, contains a statement by Marcia D. Greenberger, Co-President, National Women's Law Center, who testified that "[a]t bottom, no judicial nominee enjoys a presumption in favor of confirmation. Rather, as numerous legal scholars have shown, it is the nominee who carries the burden of convincing the Senate that he or she should be confirmed, and any doubts should be resolved against confirmation." Senate committee Hearings on the Judicial Nomination Process, Statement by Marcia D. Greenberger, 50 Drake L. Rev. 429, 485 (2002) However, Greenberger's support for her claim that "numerous legal scholars have shown" that the burden lies on the nominee doesn't convince me. Rather, she seems to rely primarily on the following quotation from Professor Chemerinsky:

Under the Constitution there is no reason why a President's nominees for Supreme Court are entitled to any presumption of confirmation. The Constitution simply says that the President shall appoint federal court judges with the advice and consent of the Senate. The Senate is fully entitled to begin with a presumption against the nominee and confirm only if persuaded that the individual is worthy of a lifelong seat on the Supreme Court.

Id. But just because the Senate is fully entitled to begin with a presumption against the nominee, doesn't mean they should. They are just as entitled to begin with a presumption for the nominee. Furthermore, such a position as Greenberger's is never really held consistently, as Gallagher points out:

Little intellectual consistency exists in the confirmation process. When a Senator's party controls the White House, that Senator extols the virtues of presidential dominance in the confirmation process. Conversely, when a Senator's party does not control the White House, that Senator suddenly argues for increased ideological scrutiny of judicial nominees, and greater input in the process.

Gallagher, supra, at 517-518 (footnotes omitted).
NPR's coverage of Miers' nomination included a discussion between NPR's judicial correspondent, Nina Totenberg, and a law professor at the University of North Carolina, Chapel Hill, Michael Gerhardt. Interestingly enough, it was Totenberg of all people who asked, "The burden is not on her to prove why she should was nominated, it's really the burden on the Senate to prove that they shouldn't approve her, isn't it?" To which Gerhardt answered affirmatively. The audio can be found here, with the specific question beginning at 1:45.

Perhaps a better analogy for confirmation hearings than a job interview is that ancient tradition which requires that a man ask the father for his daughter's hand in marrage. It's almost taken for granted that the father will start with the presumption that no one is good enough for his daughter unless proven otherwise. Yet a father who respects his daughter will trust that she will have made a good choice, and so the presumption of such a father will be in favor of granting his blessing. The analogy breaks down, however. Although the daughter (the American people) can be said to have ultimately picked the beau (the nominee), because they picked the man who chose the suitor, the doubting father (senators starting with a presumption against confirmation) are not seeking the good of the daughter, but their own agenda. The last election, in which 18 states passed marriage protection amendments, truly defined what is "mainstream," and the "concern" which motivates democrats to oppose Bush's nominees is anything but.

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