ConfirmThem

By DanCT Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

The advice and consent clause reads "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..." The text cannot be clearer. The President nominates, but the nominees only take office with "advice and consent" of the Senate. The nominations are made by the President, and the Senate is rightfully given a check on the executive power and may veto the President's choices. In Federalist Papers (#76), Hamilton discusses the framers' rationale for doing it this way:

I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. ...in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.

Hamilton's hypothesis, then, is that compromise nominations will rarely make great justices. Two historical tests bear him out. First, the great Supreme Court Justices have all been appointed when the White House and Senate were controlled by the same party, so the opposition party was unable to force a compromise candidate. A second prediction of Hamilton's hypothesis would be that great justices would tend to have contentious confirmation battles because they often will have demonstrated courageous decision-making that would be bound to offend some faction or other. John Frank phrases it as "the greater the controversy over the appointment, the greater the accomplishments of the Justice." He takes great pains to explain that the maxim is not absolute, that there are greats that were not controversial and there were controversials that were not great, but, as a general rule of thumb, controversy follows greatness. He discusses at great length why such a pattern might arise, and writing in 1976, he finds his evidence in the 60 years in the middle of the 20th century:

In the past 60 years there have been 36 appointments and confirmations. Ten of those appointments have engendered distinct controversy at the confirmation... the least distinguished [among these] being first class and some of them the foremost figures ever to sit on this court; all were subject to real confirmation disputes. Frank's Law, I submit, is clearly sustained on the evidence; indeed, the three most controversial appointments in this list of ten are those of Brandeis, Hughes and Black, and all three would be on any scholar's list of the ultimate immortals.

He then concludes:

The true meaning of the confirmation process is that where a very strong figure is appointed from some form of non-judicial public life, if he has been strong enough and active enough and conspicuous enough and effective enough, he will have enemies. This will make a confirmation controversy. If the appointee survives that controversy, he will almost assuredly make a very fine Justice.

AEI's John Lott (quoted by Andrew--a post well worth re-reading) recently made the same observation: "It is pretty much the dumber you are, the easier it is to get on the court," he says. Senators get more upset if the President wants to "put a bright person on who may be influential," Lott says.

Democrats are now arguing to institutionalize mediocrity by using the filibuster rule to force compromise and wrestle the control over the nomination process away from the President and into the hands of a minority of the Senate. Some, like Senator Schumer (D-NY) apparently don't like the way the framers framed the issue, ignores the great arguments made by Hamilton, and twists the clear words of the Constitution to make it appear to concur with his power grab: "...the Framers decided to give the President the power to nominate judges balanced by the Senate's power to give advice about those nominations and the power to consent to the appointments." However, the Constitution gives the Senate a role only in the appointment, not in the nomination: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..." Hamilton's hypothesis explains why. It should also be noted that Schumer's comments are not just a slip of the tongue. He proposed a striking assault on the President's power to nominate in a press release:

So if you want a true compromise that preserves balance between the branches, I offer my proposal:

Create nominating commissions in every state and circuit.

Give the President and the opposition party leader in the Senate the power to name equal numbers of members of each commission.

Instruct each commission to propose one name for each vacancy.

And, barring the discovery of anything that disqualifies the person for service, both the President and the Senate agree to nominate and confirm him or her.

This is precisely the kind of thing that Hamilton warned against and the founders were trying to avoid when they wrote the advice and consent clause as they did rather than as Schumer wishes it had been written.

I find it amazing that the President--who is normally so attuned to preserving the power, prestige and dignity of the Presidency--is not making more of a show to defend his office against the Senate Democrats' brazen assault.