This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.

In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”

This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.

In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.

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