ConfirmThem

By AndrewHyman Posted in Images — Comments (0) / Email this page » / Leave a comment »

Over at the Volokh Conspiracy, George Mason Law Professor Ilya Somin is urging that the Senate follow the lead of Chuck Schumer, and reject qualified nominees for ideological reasons. I very much disagree with Professor Somin's post, and will explain the two main reasons why (Marshall Manson previously addressed this subject here at confirmthem).

Professor Somin says that he agrees with Senator Schumer's reliance on the precedent set by the Senate's rejection of John Rutledge in 1795. But the Rutledge incident is no precedent for what Schumer and Somin propose.

The history of the Rutledge matter is summarized in a report of the Congressional Research Service.

Rutledge became Chief Justice on July 1 of 1795, by recess appointment. Then, on July 16 of 1795, Chief Justice Rutledge gave an extremely controversial speech denouncing the Jay Treaty with England. He said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it." Inevitably, this caused the Senate to reject his nomination on December 15 of 1795, and there were also rumors of mental imbalance. Days after the Senate rejection, Chief Justice Rutledge attempted suicide, and finally resigned as Chief Justice on December 28 of 1795.

Vice President John Adams wrote to Abigail Adams that the Senate's rejection of Rutledge "gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not ... inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people." To use the Rutledge incident as some sort of precedent for the Senate to take ideology into account is a huge mistake. A sitting Chief Justice simply has no business saying in a public oration "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it," regardless of the content of a treaty. And, Chief Justice Rutledge added that supporters of the Jay treaty were guilty of "prostitution of the dearest rights of freemen." His speech referred to provisions of that treaty as the "grossest absurdities" which he blasted as "ridiculous and inadmissible."

Professor Somin also argues that the framers would not have placed the nomination and confirmation of judges in the hands of the political branches, unless the framers intended that judges be screened for political ideology. On the contrary, the framers placed this job in the hands of the political branches because the political branches were expected to jealously guard their prerogatives, and not tolerate judges who usurp the legislative function. The power of impeachment was placed in the hands of the political branches for the same reason, as Hamilton explained in Federalist 81:

There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.

I hope that Professor Somin will rethink this matter, and at least come up with better arguments.

P.S. And just for good measure, here's Hamilton in Federalist 66:

It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Therefore, it seems to me that Jonathan Adler is correct: "the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology."