Date: January 12, 2006
Senator: Witness - Gerhardt
SPECTER: Thank you, Ms. Axelrod.
Our next witness is Professor Michael Gerhardt, distinguished professor of constitutional law at North Carolina School of Law. Professor Gerhardt is the author of a number of books on constitutional law. He has served as special consultant to the White House on the nomination of Justice Stephen Breyer. He received his bachelor's degree from Yale in 1978, masters from the London School of Economics and law degree from the University of Chicago in 1982. Thank you for joining us, Professor Gerhardt, and the floor is yours for five minutes.
GERHARDT: Thank you very much, Mr. Chairman, Senator Leahy and other distinguished members of the committee. For almost 20 years, I have had the honor of teaching constitutional law. For almost as long, I have studied the process of Supreme Court selection in some detail and have had the privilege and opportunity to write about it at some length.
And I come to you today with the hope that whatever expertise I have developed in that process may be of some use to you. In this statement, I want to just make three brief observations as extensions of my written statement, which you already have.
First, the constitution allows every senator to make a decision about a Supreme Court nominee based on whatever factors he or she considers to be pertinent, including judicial philosophy. The constitution, I believe, does not require absolute deference to the president when it comes to making Supreme Court nominations, nor, for that matter, does it require hostility. The constitution allows you, I think, to do what you see fit. It allows you to engage in a robust dialogue about the qualifications for service on the Supreme Court.
With that in mind, I just want to give you one brief example of what I'm talking about and what the constitution allows, just to illustrate the robustness of the process -- that we shouldn't be ashamed of it, but, in fact, should be prepared to embrace. Much has been said about the fact that Judge Alito has had the most judicial experience of any nomination made to the Supreme Court in almost 70 years, but nobody mentions who that other nominee was.
That other nominee that proceeded him was Benjamin Cardozo. And Cardozo, as we probably all know, was not President Hoover's first choice. He wasn't even President Hoover's second choice. In fact, he was the choice of the Senate. And when senators came to the president and said, in effect -- in fact, members of this committee came to the president and said, in effect, that "This is the person we want, here are the criteria we think are important," President Hoover was not obliged in any way, shape or form to accept that, but he did.
And I simply make that observation to underscore the fact that there is an opportunity for exchange between the presidency and the Senate with respect to a Supreme Court nomination. And we should be prepared and as open as possible in talking about the qualifications for service. And again, if each of you believes to some extent that judicial philosophy is appropriate, it's important to say so and to act accordingly.
Secondly, you know better than I the important function of this committee as a gatekeeper. You are in the position, at least the initial position, of being able to filter out the views and personality you don't want to see reflected on the Supreme Court. Or you're in the position of determining what views and personality you do want to have on the Supreme Court.
The Supreme Court is largely a function of choices made by the president and the Senate. The Senate and the president help to make the Supreme Court what it is. And I think that that dual partnership is something we ought to keep in mind, because in making determinations and judgments about a Supreme Court nomination, the Senate has an extremely important role to play.
And the more vigorously you perform that role, I think, the more credit it does to you, and the more we can be assured that whatever choice gets made about the people that serve on the court, that we can have confidence that they can be there, that they are worthy of the trust you've given them to exercise the awesome power of judicial review over the constitutionality of not just your actions, but the actions of other branches.
Third, I must confess, and I regret there's an error in my written statement, I discuss in the written statement the importance of assessing whether or not Judge Alito was a bottom-up or top-down judge. A bottom-up judge is somebody who decides cases incrementally, one at a time, and has a great deal of respect for precedent. A top- down judge is somebody that tends to infer principles directly from the constitution and then impose them from the top down.
And in the course of trying to figure out whether Judge Alito is bottom-up or top-down, I made a mistake in not identifying Justice Harlan as one of the justices he most admires. I just wanted to correct that error. The reverence for Justice Harlan is almost universal, and he's certainly one of the justices I most admire. But the admiration for Justice Harlan does raise a question.
And the question is this: "How, if at all, does Judge Alito's reverence for Justice Harlan make him the same kind of judge or a different kind of judge than other justices who also have admired Justice Harlan, including Justice Kennedy and Justice Souter. Is he the same kind of judge they are, or is he a different kind of judge?"
Reverence for Justice Harlan is obviously pertinent, it's important, but it may only tell us so much, and I think it's useful and very important for you not to shy away from asking the tough questions. You have asked the tough questions. I think it does you credit. I think that's what this process is all about, and I am privileged to be a part of it.