Other Columns by Horace Cooper
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Senate Democrats must not insist that the Senate refuse to vote on John Roberts' confirmation to be chief justice until after Sandra Day O'Connor's successor is named as Duke Law Professors James Coleman and Erwin Chemerinsky suggest. Doing this is contrary to history, creates an extra-constitutional hurdle for judicial nominees and threatens the court's independence solely for partisan purposes.

First, look at history. 1969 was the last time that a dual vacancy involving the chief justice existed on the Supreme Court. Chief Justice Earl Warren had announced his intention to retire at the end of the court's term in 1968. And after the presidential elections that year President Nixon (who had campaigned on a platform that included criticisms of Supreme Court decisions against school prayer and in favor of criminal defendants) was given the opportunity to make his selection.

But before he could do so a second justice -- Abe Fortas a distinguished liberal on the Supreme Court -- would announce his resignation. Nixon would nominate D.C. Circuit Court of Appeals Judge Warren Burger to be the new chief justice on May 21, a week after Justice Fortas' resignation.

As far as two justices are considered, Warren Burger and Earl Warren couldn't have been farther apart in terms of their ideology and judicial philosophy. Judge Burger a Midwestern conservative had written extensively about the hazards of the Supreme Court's judicial liberalism especially in the area of criminal law. And Chief Justice Warren was the embodiment of this judicial liberalism.

Yet Senate leaders did not insist on insuring that Chief Justice Earl Warren be replaced by a judge of similar liberal leanings nor did they demand to know who the next nominee would be before considering Warren Burger. Instead they acted on the nomination. On June 9 the United States Senate would confirm Warren Burger as Chief Justice by a vote of 74 -- 3. Importantly, it would be nearly two months before President Nixon would announce Justice Fortas' successor. Clearly, the history of modern appointments shows no evidence that a standard requiring senators to know who the nominees for other vacancies on the Supreme Court are before they consider a given nominee's fitness has ever existed.

Secondly, this novel position creates an extra-constitutional standard that the framers of the Constitution never intended. Article II, Section II of The United States Constitution provides that the president "shall nominate, by and with the advice and consent of the Senate ...judges of the Supreme Court."

In no way does carrying out this responsibility require knowing the names of any other expected members of the Court. The framers expected that each individual nominee be evaluated on their merits and abilities. And even in practice this "new" standard is unmanageable. Imagine refusing to confirm the secretary of defense until all other proposed Cabinet members are announced. Imagine even withholding confirmation of the secretary of defense until just other senior members of the Department of Defense are named.

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