As a counsel on the Senate Judiciary Committee from 2005 to 2013, I worked on the Senate’s consideration of five Supreme Court nominations. What I saw was a rigorous process for vetting nominees that developed over decades and that both parties rightly insisted on. It is a process that has often been criticized and that has not always worked as intended, but at base it has guaranteed that senators do not vote on lifetime appointments to one of the most important positions in American life without a thorough basis on which to judge whether a nominee’s background, views, and character make them an appropriate choice for the Supreme Court.
If the idea were simply for the president to get his pick without any check, the Framers would not have included the constitutional provision giving the power of advice and consent to the Senate. It is a real responsibility, and it should be done right. If there is not time to do it right, it should not be done at all.
The process has not been and cannot be a quick one. It has included a careful examination of just about everything a potential justice has written and said. The Senate has been provided with judicial opinions, writings, and press appearances by a nominee, as well as complete sets, with limited redactions, of the nominee’s papers from any previous executive-branch service. Senators and staff on both sides of the aisle have pored through every page of that often-massive record, which could contain memos about key executive-power issues, judicial decisions on constitutional rights, or provocative opinion pieces.
The process has included a thorough FBI background investigation with a chance for senators and staff to review it and follow up on any issues raised. Brett Kavanaugh’s confirmation showed that the FBI review itself can sometimes be rushed or overly restricted, which reduces its usefulness and shows the need to go more slowly and methodically, not to speed up the process further. The FBI investigation has been an important part of ensuring that a nominee is suitable for a lifetime appointment to a court that each year decides cases affecting the rights and responsibilities of millions of Americans. Almost all senators have in the past reviewed the FBI file, and in my experience it was not taken lightly.
The vetting process has included the opportunity for senators to have private conversations with the nominee, which often feature prominently in senators’ decision-making process. It has included the chance to ask the nominee questions publicly at a hearing, followed up by extensive written questions.
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The process didn’t end there. Senators and staff would review a nominee’s finances and past work experience; they would think through potential conflicts of interest. During investigations and hearings, they would dive into unique issues that arose from a nominee’s background. They would hear from witnesses with personal knowledge of the nominee or with deep expertise or a personal stake in important issues the nominee might consider as a justice. They would discuss and debate extensively.