Bruce Ackerman, a prominent constitutional law professor at Yale Law School, warned against the tactic of “stealth” Supreme Court nominations, where an ideologically driven President who seeks to change the direction of the Supreme Court nominates a relatively undistinguished appeals court judge whose lack of distinction and sparse ideological record conceals a secret agenda:
The job of the Senate is to make it clear to the American people which path the President is taking. Under the Constitution, the president’s judicial nominations are subject to the Senate’s ‘advice and consent’, and it deliberates under rules that give the minority party a special say. Unless 60 of the 100 senators agree to terminate debate, a minority can block a final vote by refusing to end discussion of the nominee on the floor.
The stakes are very high and the … minority should be careful. In the first instance it should determine whether the president has nominated a … radical…. Above all else, it must oppose any ‘stealth’ candidate whose record is so undistinguished that his judicial philosophy remains secret. Perhaps after hearing a … nominee present his arguments before the Senate judiciary committee most Americans will support the case for radical change; perhaps not. But one thing should be clear: the Senate should not give its ‘advice and consent’ to a stealth revolution in constitutional law.
Law students under Ackerman’s tutelage at Yale Law School urged law students to send a letter to Senators against the appointment of any nominee whose judicial philosophy was out of the mainstream:
As a Senator, you have the constitutional obligation to stand as a bulwark against the appointment of a Supreme Court Justice whose views represent only a narrow segment of our nation. Your Advise and Consent power means that you can and should ensure that American jurisprudence continues to be characterized by justice and freedom for all, rather than advancing the political agenda of a few.
The year was 2005. Ackerman’s admonition in February 2005 against the Senate confirming stealth nominees was directed at the prospective nominees of then President George W. Bush. The law student group was “Law Students Against Alito” and the letter was in opposition to Samuel Alito upon his nomination in October 2005. Ackerman would go on to warn that “the confirmation of Samuel Alito carries a clear and present danger of a constitutional revolution on a very broad front” and that Alito was “a judicial radical.”
Do the same standards apply to nominees of President Barack Obama?