Placing the Burden on Judge Alito
According to Senator Russ Feingold:
No one is entitled to a seat on the Supreme Court simply because he has been nominated by the President. The burden is on the nominee to demonstrate that he should be confirmed.Similarly, Senator Richard J. Durbin noted:
The burden of proof is yours, Judge Alito – the burden of demonstrating to the American people and this Committee that you are worthy to serve on the highest court of the land and worthy to succeed Justice Sandra Day O’Connor.The suggestion that a nominee bears the burden of proving that he or she is deserving of a seat on the Supreme Court was advanced most forcefully by Senator Chuck Schumer, who argued:
The decisions [of the Supreme Court] are final and appeals impossible. That's the awesome responsibility and power of a Supreme Court justice. And it's, therefore, only appropriate that everyone who aspires to that office bear a heavy burden when they come before the Senate and the American people to prove that they're worthy.However, Senator Schumer's belief that the burden rests with a judicial nominee may be inconsistent with Federalist No. 78 (See, Stephen B. Presser, Should Ideology of Judicial Nominees Matter?: Is the Senate's Current Reconsideration of the Confirmation Process Justified? 6 Tex. Rev. L. & Pol. 245, 264 (Fall 2001)), and may also lead to the dangerous result that the confirmation process will devolve into an exclusively and unabashedly political enterprise. As noted elsewhere, the term "burden of proof" is "wholly inapplicable to a judicial nomination" because its "continued use..., 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, 519-520 (2002-2003), such as the failure to satisfy an ideological litmus-test. Indeed, as a leading constitutional scholar noted, "the Senate need not, and should not, place the burden of proving partisan compatibility upon judicial nominees in order to faithfully perform its intended constitutional role." Statement by Douglas W. Kmiec, Senate Committee Hearings on the Judicial Nomination Process, 50 Drake L. Rev. 553, 559 (2002) (emphasis added). Also, the sheer mechanics of the confirmation process, in which the nominee responds to questions by the Committee rather than presents arguments that he or she should be confirmed, lends additional support to the suggestion that a nominee should not have to affirmatively prove he or she belongs on the Supreme Court.
Senator Schumer not only argues that Judge Alito bears such a burden, but that this burden may conveniently shift. In the case of Judge Alito, it is "triply high":
First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.Arguing that the the particular circumstances of Judge Alito's nomination warrant greater justification for confirmation does not seem to be an honest attempt by Senator Schumer to explain his conception of and expectations for the process. Rather, the "triply high" burden appears to place, at the outset, an insurmountable hurdle that Judge Alito must surpass in order to obtain Senator Schumer's vote. That is, he has set the bar so high in advance of the substantive part of the hearings that, in the end, Senator Schumer may predictably claim that Judge Alito has failed to prove that he deserves a seat on the Supreme Court. In doing so, Senator Schumer has, in his opening statement, invited claims that he will engage in a result-oriented review of Judge Alito's fitness for the Supreme Court.