In our system of checks and balances, the Senate has a co-equal role with the President in appointing federal judges, since it must provide its "advice and consent" before any nominee becomes a judge. It is imperative that the Senate carries out this constitutional role in a careful, thorough and diligent manner. Judicial nominees - who are confirmed for lifetime appointments - must be carefully scrutinized.
In carrying out its role, the Senate must ensure that judicial nominees are subject to the highest standard of scrutiny. The decisions of judges last long after they and the President who appointed them have retired. The American people must be assured that judges who are given the solemn constitutional responsibility of protecting their rights and upholding the Constitution are unequivocally committed to justice and equality for all.
Each nominee's record must be examined carefully, including unpublished opinions and other information that may not be readily available. By its very nature, this sometimes is a time consuming process but one that is essential to the Senate's obligation to evaluate the full record of a nominee. The mere absence of disqualifying evidence in a nominee's record should not constitute sufficient grounds for confirmation.
The Senate should reject far right court-packing efforts, and should withhold its consent from right-wing nominees who do not demonstrate a commitment to civil rights and liberties. Senators should take a clear and unequivocal stand, including discussing openly the potential impact of right-wing domination of the federal courts and the importance of opposing nominees whose lifetime appointments would threaten America's rights and liberties. More moderate, mainstream nominees who reflect genuine bipartisan consultation should receive priority in processing.
- No nominee is presumptively entitled to confirmation to a lifetime appointment to any federal court. Particularly for the courts of appeals and the Supreme Court, a nominee bears the burden of demonstrating that he or she meets the appropriate qualifications, which should include a demonstrated commitment to civil rights and individual liberties, and a clear respect for Congress' proper constitutional role in protecting constitutional and civil rights and the health and safety of all Americans. More than 200 law professors have written to the Senate, setting forth these qualifications.