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Michael C. Dorf

Senator Lindsey Graham Puts Ideology Aside to Vote for Elena Kagan: His Stand is Honorable, But Is It Constitutionally-Required?


Monday, July 26, 2010


Last week, the Senate Judiciary Committee voted to send the Supreme Court nomination of Elena Kagan to the full Senate. Kagan garnered the votes of all of the Committee's Democrats, but only one Republican: South Carolina Senator Lindsey Graham.

In a thoughtful and politically courageous speech, Graham said that he was fully satisfied with Kagan's professional qualifications, her good character, and her understanding of the difference between law and politics. Although Graham explained that he disagreed with Kagan's judicial philosophy, he nonetheless recognized that her views fall comfortably within the mainstream among Democrats.

Despite Graham's best efforts to elect John McCain President in 2008, the Democrats won the Presidency. Thus, Graham said, respect for that process required him to approve Kagan. He concluded his eloquent remarks by stating that he would not have nominated Kagan were it up to him, but that President Obama, given his views, chose wisely.

Senator Graham's view can be summarized as follows: The role of the Senate is to examine a nominee's professional qualifications, character, and whether her substantive views fall within the broad mainstream of legal thought. And indeed, many Senators have, over the years, taken exactly that position.

But Graham went further, suggesting that Senators are constitutionally-forbidden from voting against a nominee based on ideological disagreement with the nominee. As I shall explain in this column, however, this suggestion is false: The Constitution does not clearly circumscribe the Senate's role. Moreover, even if all of the Senators had accepted Graham's views about their proper role, increased party polarization would have made the "mainstream" requirement difficult to satisfy in practice.

What the Constitution and Alexander Hamilton Said About the Senate's Role

Article II, Section 2 of the Constitution empowers the President, to "nominate . . . by and with the advice and consent of the Senate . . . judges of the Supreme Court." Under what conditions may the Senate withhold its "consent" to a President's Supreme Court nominee? The Constitution says nothing about the matter, but during his speech last week, Senator Graham pointed to Federalist No. 76 (which Graham mistakenly identified as No. 6), by Alexander Hamilton.

The core of Federalist No. 76 argues that transferring the power of appointment from Congress (where it resided under the Articles of Confederation) to the President would greatly reduce the likelihood that offices would be distributed based on petty political considerations, rather than qualifications. But then, Hamilton asks rhetorically, why not give the President the sole power of appointment? He answers, in the language quoted by Senator Graham, that the requirement of Senate consent "would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."

In his speech, Senator Graham took this language to express a limit on the Senate's role: The Senate should weed out Presidential cronies and professionally- unqualified nominees, but Hamilton did not suggest that the Senate could reject--and thus Graham concludes that the Constitution forbids the Senate from rejecting--a nominee simply because the Senators disagree with his or her substantive views.

Yet for three chief reasons, Hamilton's language in Federalist No. 76 is not nearly as conclusive on this matter as Senator Graham suggested.

Hamilton Was Talking About Executive Appointments, Not Judicial Ones

First, it is clear from the context that Hamilton's main focus was Presidential appointments to serve in the Executive branch of government. In the sentence from Federalist No. 76 immediately following the language quoted above, Hamilton stated that the requirement of Senate confirmation "would be an efficacious source of stability in the administration" (emphasis added).

Granted, the Constitution uses the same language to confer on the Senate the power to advise and consent to judicial appointments as to executive branch appointments. Yet there are good reasons for the Senate to grant the President greater deference in selecting people to carry out his own policies, than it grants the President to select people who will serve for life on an independent Judiciary that is tasked, among other things, with checking Presidential power. Hamilton's endorsement of Senate deference to well-qualified nominees "in the administration" thus need not entail similar deference to judicial nominees.

Hamilton's Views on Executive Power Were Not Universally Shared

Second, even if we were to treat Hamilton's views as having some application to judicial nominations, they were, after all, only Hamilton's views. The Federalist Papers as a whole were polemical works, aimed at persuading New Yorkers to ratify the Constitution. They should not be mistaken for anything like an official legislative history of the 1787 Constitutional Convention.

Moreover, one must be especially suspect of Hamilton's views on relations between Congress and the President, because Hamilton stood at one extreme end of opinion among the Framers. More than any other prominent figure of his generation, Hamilton favored a very strong President, at the head of a very strong national government. It is not surprising to read that Hamilton thought the Senate would or should defer to the President, because he generally sought to concentrate power in the Presidency. Knowing that Hamilton saw a limited role for the Senate to check the President on appointments does not tell us all that much about the center of informed opinion at the founding; Hamilton was far from a centrist on this issue.

How Political Parties Changed the Game

Third, neither Hamilton nor others of his generation anticipated how the rise of political parties would fundamentally alter the relationship between the President and Congress. The Framers expected there to be differences of opinion between the President and Congress, of course, but they expected these differences to be institutional and regional, rather than ideological.

Without political parties, the Framers imagined that, except for George Washington, no Presidential candidate would have sufficient national appeal to win a majority in the Electoral College. Thus, they expected that, pursuant to Article II, Presidential elections would typically be decided by the House of Representatives, where members would vote in state delegations on a one-state-one-vote basis.

Hence, they envisioned that the President would typically be chosen from a voting procedure that mirrored voting in the Senate, where states were (and still are) also represented on an equal basis per state--not in proportion to population. Hamilton and others of his generation simply did not anticipate that the Senate and the Presidency could be controlled by members of different political parties, and thus divided by fundamental ideological disagreements.

In a world of narrow, fleeting differences between the President and the Senate, one would not expect the Senate to reject very many Presidential nominees to the courts or to the President's own administration. Yet that world vanished due to the Election of 1800 and the resulting passage of the Twelfth Amendment (providing, as an accommodation to the birth of the two-party system, for the Presidential and Vice- Presidential nominees to run on a single ticket).

A Checkered History

To be sure, the rise of the two-party system did not convert every subsequent Presidential nomination into a political fight with the Senate. Often, the President's party commanded a majority in the Senate. And when it did not, Presidents often felt a need to compromise in advance by nominating moderates within their own party or even, occasionally, members of the other party, knowing that a more strongly ideological nominee could well be rejected.

Consequently, over the long course of American history, the Senate has sometimes been assertive in resisting Presidential nominees, while at other times it has granted substantial deference to Presidents' selections. And although most nominees have been confirmed, that fact may be misleading, because many of those who were confirmed had to first withstand a significant political fight.

President Wilson's 1916 Supreme Court nomination of Louis Brandeis is instructive. Brandeis was bitterly and fiercely opposed by conservatives. Although some of the opposition was couched in terms of qualifications, it was dominantly ideological (with some subtle anti-Semitism mixed in). Conservatives worried that as a Justice, Brandeis would favor the interests of workers over those of business owners. Some of them said so expressly, but they were simply outvoted. (Brandeis was confirmed 47-22, and went on to greatness, writing landmark opinions on matters of federalism and prescient dissents on free speech.)

Brandeis's experience was hardly unique in the annals of American history. The Senate rejected President George Washington's nomination of John Rutledge to be Chief Justice. Although there were grounds for believing Rutledge to be unfit--specifically, signs of encroaching mental illness--some of the opposition was frankly ideological: Rutledge had denounced the Jay Treaty, angering its supporters.

In the fights over Brandeis, Rutledge, President Reagan's 1987 Supreme Court nomination of Judge Robert Bork, and other divisive figures, some Senators argued for exactly the position that Senator Graham took last week--contending that a professionally-qualified nominee without personal skeletons in his or her closet should be confirmed, even by Senators who do not share that nominee's substantive views. That is a respectable and honorable position, but as we have seen, it is not commanded by the text or history of the Constitution.

Accordingly, Senators have often voted against confirming a nominee based on ideology. Sometimes they dress up their ideological differences as quarrels with the nominees' qualifications or character. But other times, they openly argue that their advise-and-consent function permits or even requires them to examine ideology. New York's Democratic Senator Charles Schumer made that argument during the Bush years, and then-Senator Obama endorsed it as well.

The Breakdown of a Practice of Deference

In espousing the view that Senators owe a President's nominees deference, Senator Graham is bucking the trend in his own party. All of his Republican colleagues on the Judiciary Committee voted against Kagan, and we can expect the vast majority of Republicans in the full Senate to follow suit.

As we have seen, Graham is wrong to suggest that his Republican colleagues are acting unconstitutionally in opposing Kagan, but he is right that there have been recent periods in which Democrats and Republicans alike gave substantial deference to the Supreme Court selections of Presidents of both parties. Reagan nominees like Antonin Scalia and Anthony Kennedy, as well as Clinton nominees Ruth Bader Ginsburg and Stephen Breyer, were all confirmed with overwhelming bipartisan support.

What changed? Iowa Republican Senator Charles Grassley--who voted to confirm both Ginsburg and Breyer, but voted against Sonia Sotomayor and opposes Elena Kagan--claims that the Democrats were first to break the pattern of deference. He and others point to Democratic opposition to President Bush's nomination of Miguel Estrada to a federal appeals court, as well as substantial, and frankly substantive, Democratic opposition to Bush Supreme Court nominees John Roberts and Samuel Alito. If Democrats do not defer to Republican Presidents, Grassley says, then he and other Republicans will not defer to Democratic Presidents.

In the fashion of children squabbling, one can quibble with Senator Grassley's account of "who started it." Despite Republicans' voting to confirm both of President Clinton's Supreme Court nominees, Democrats complained that Republicans blocked or slowed some of Clinton's nominees to the lower federal courts. That obstructive practice, Democrats say, led them to be more assertive during the Bush Presidency. Republicans, in turn, cite the contentious hearings for Judge Bork and for Justice Clarence Thomas, which Democrats in turn distinguish. And on it goes.

The Real Problem: Increased Polarization

Who's right? Probably both sides. The real issue is not whether Senators should or should not defer to a President's judicial nominees. If one carefully parses the speeches of Senators on opposite sides of this question, one sees that they are not really very far apart. Everyone agrees that a Senator cannot insist that a President from the other political party must put forward nominees who share all of the Senator's views; that is, everyone agrees some deference is appropriate and inevitable.

The question is where deference ends. But even on that question, there is substantial consensus that a Senator may reject a President's nominee if he or she is, in the words of both Senator Graham and Senator Schumer, outside of the "mainstream."

Given that consensus, why has the practice of cross-party deference broken down? The answer, quite simply, is increased political polarization. As party activists have become more ideologically extreme, it has become harder for the two parties to find common ground. That dynamic has been obvious recently on legislative matters: President Obama's signal legislative accomplishments--stimulus spending, health-care reform, and financial reform--all occurred with almost no Republican support. Republicans, fearing rejection by "Tea Party" activists in their own party, have not just disagreed with these policies; they have denounced them as "socialist."

The same dynamic now infects judicial appointments. Although Supreme Court Justices themselves find common ground in most cases, they divide on the hot-button issues that party activists care about: abortion; affirmative action; gay rights; and so forth. With very little overlap between the party activists on these fundamental issues, a judicial nominee who is moderate by Democratic standards will appear to be an extremist to Republicans, and vice-versa. For party activists, and Senators who are afraid to anger them, there effectively is no "mainstream." There are instead two streams, separated by a wide canyon.

In his remarks last week, Senator Graham tacitly recognized as much. He referred to Elena Kagan as being within the mainstream of the Democratic Party--not, for instance, within the mainstream of American politics or of American constitutional thought. For Graham and a handful of like-minded moderate Republicans, that position may put Kagan in shouting distance of their own views. But for a Republican Party that is increasingly worried about its right flank, Kagan's position within the Democratic mainstream places her beyond the pale.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at His next book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison), will be published in September.

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