Supreme Court confirmation hearings have come in for a lot of criticism in recent years. They’ve been called a “Kabuki Dance” and a process which has “take[n] on an air of vacuity and farce.”
Amid all the discussion of whether or not nominees have become more evasive recently – a subject we’ll address later in the week – an important question has gotten somewhat less attention in our ongoing national conversation. What does the Senate’s duty to give “advice and consent” mean anyway? Is a Senator entitled to ask a nominee about a hot-button issue – abortion, guns, the death penalty – and expect an answer? Is it legitimate for a Senator to vote against a nominee because of a perception that she’s too liberal or too conservative?
The “advice and consent” language arose out of a lengthy debate in the Constitutional Convention, the result of a compromise to a long-ending battle between those who wanted the Congress – or the Senate alone – to appoint judges, and other delegates who would have assigned that power exclusively to the President. Reviewing the evidence, it seems difficult to believe that a majority of the Convention supported a pro forma Senate role in confirming Supreme Court nominees.
Anyone arguing that the Senate should play only a deferential role faces an additional barrier. There’s considerable evidence that most seventeenth and eighteenth century rejections – including at least one, John Rutledge, by a Senate which counted several Founders among its members – were for political reasons.
The story begins with Edmund Randolph’s “Virginia Plan,” which proposed a “National Judiciary . . . to be chosen by the National Legislature.” A few days later, one of America’s first great lawyers, James Wilson, criticized the proposal for Congressional appointment, arguing that judges should be appointed exclusively by the Executive Branch. Benjamin Franklin suggested that the Convention might consider other methods of selecting judges, noting that in Scotland, lawyers picked the judiciary:
[T]he Lawyers . . . always selected the ablest of the profession in order to get rid of him, and share his practice (among themselves).
James Madison didn’t like either Congressional or Presidential appointment, and successfully moved to put the question aside for a while.
The following week, the Convention returned to the question. Madison argued that if the appointment power was given to the entire Congress, members would tend to appoint one of their own. He proposed that the Senate make the selection, and the Convention agreed.
In the days that followed, William Paterson of New Jersey proposed the “New Jersey Plan,” which would have allocated the power to appoint judges exclusively to the President, and Alexander Hamilton proposed a compromise – Presidential appointment, “subject to the approbation or rejection of the Senate.” But for the time being, the Convention held fast to the idea of appointments by the Senate.
There the matter rested for a month. In mid-July, Nathaniel Gorham of Massachusetts proposed a model rooted in his own state’s constitutional practice – appointment by the President, with the advice and consent of the Senate. Gorham almost immediately picked up an important ally – James Wilson, a prime proponent of Presidential appointment. Roger Sherman of Connecticut, a supporter of Congressional appointment, indicated that he might be willing to settle for advice-and-consent as well, but other delegates weren’t convinced. Ultimately, the whole matter was handed over to the Committee on Detail, which reported a draft in early August restoring Senate appointment.
By early September, there seems to have been some sentiment in the Convention for cutting back slightly on the Senate’s power. The Committee on Compromise presented its report, once more calling for Gorham’s plan – Presidential appointment, with the advice and consent of the Senate. James Wilson, who had earlier supported Gorham, back-tracked, arguing for Presidential appointment subject to the non-binding advice of a “Privy Council,” but Wilson’s proposal received little support, and the Committee on Compromise’s “advice and consent” appointments clause was adopted.
So if the Senate wasn’t intended to defer to the President’s choice, what is a reasonable test for a Senator to apply in deciding whether or not to support confirmation? Join us below the jump for the views of three prominent players in Solicitor General Kagan’s confirmation.
One prominent Senator – writing at a time his party was in the minority — has proposed a test which notably omits any consideration of a judge’s constitutional philosophy:
- “[T]he nominee must be judged competent.” The Senator noted that “[t]he President should certainly not be restricted to naming sitting judges. Legal scholars as well as practicing lawyers might well be found competent.”
- "[T]he nominee should be judged to have obtained some level of achievement or distinction . . . This achievement could be established by writings, but the absence of publications alone would not be fatal.”
- “[T]emperament could be significant.”
- “[T]he nominee . . . must have violated no existing standard of ethical conduct rendering him unfit for confirmation”; and
- “[T]he nominee must have a clean record in his life off the bench.”
Another long-time member of the Judiciary Committee, on the other hand, appeared ready to undertake a more searching inquiry into a nominees’ judicial philosophy:
- “[D]oes the nominee have the intellectual capacity, competence, and temperament to be a Supreme Court Justice?”
- “[I]s the nominee of good moral character and free of conflict of interest that would compromise her ability to faithfully and objectively perform her role as a member of the U.S. Supreme Court?”
- “[W]ill the nominee faithfully uphold the laws and Constitution of the United States of America? I believe it is essential that the committee . . . make a thorough effort through intensive questioning on various issues to better determine your judicial philosophy.”
Fifteen years ago, a prominent constitutional law professor dismissed the idea that “legal ability alone ought to govern, or as a practical matter could govern, either the President’s or the Senate’s decision.” The professor called “focusing the confirmation process on moral character (even in conjunction with legal ability) . . . a terrible error.” According to the professor, the ideal confirmation hearing would consist of “discussion first, of the nominee’s broad judicial philosophy, and, second, of her views on particular constitutional issues.”
So who proposed the more deferential standard, and who supported a more detailed investigation by the Senate of a nominee’s philosophy? The first set of quotes are from Minority Leader Mitch McConnell, in a 1970 law review article [pdf]. The speaker in the second set of bullets is Vice President Joseph Biden, in his opening statement at Justice O’Connor’s confirmation hearings.
The prominent constitutional law professor? Solicitor General Elena Kagan.