WHY THE SENATE SHOULD HAVE AN EARLIER, LARGER ROLE IN JUSTICES' CONFIRMATIONS: Giving Force To The Constitution's "Advice And Consent" Language

By JOHN DEAN

Friday, Mar. 16, 2001

When Alan Drury's best selling-story of the perils of the Senate's confirmation process, "Advice and Consent," was published in 1959, it ushered the title phrase, which derives from the Constitution itself, into public consciousness. Messy but engaging televised confirmation hearings have kept the public's awareness of the phrase, and interest in the process it describes, very much alive.

[Confirmation]

Whenever a dramatic Senate hearing occurs, students, journalists, historians, political scientists and law professors proceed to examine anew the proper role of the Senate in consenting to such nominations. Seldom, however, does anyone focus on the Senate's role in giving not just "consent" but also "advice." This is unfortunate, because an improved understanding of what the founders had in mind would make the process better as an aspect of our democracy — though not, however, as theater.

The History of the Constitution's "Advice and Consent" Language

Article II of the Constitution in a few words set forth, quite simply, the "advice and consent" process: The President of the United States shall "nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court." While the words are straightforward, there is a rich history behind them.

According to James Madison's notes of the debates at the Constitutional Convention, the issue of selecting justices was vigorously debated until agreement was found. Charles Pinckney and Roger Sherman argued that the Congress should select justices because it was a deliberative and representative body. In contrast, James Wilson thought the President should pick justices because he would have a national perspective, and if he made a bad choice he would be individually responsible, while a collective decision of Congress might hold no one responsible.

James Madison didn't like either option. He felt the Congress might be inclined to factious disputes and intrigues, but he also opposed giving unchecked power to a president. As a compromise, he suggested a scheme similar to that in the Massachusetts constitution, in which the president would appoint justices but at least one-third of the Senate would have to concur.

George Mason spoke against this option, arguing that it still gave too much deference to the president, conferring upon him a powerful prerogative that might enable him to influence the judiciary. Following Mason's speech, the delegates voted to lodge the appointment of justices with the Senate — and only the Senate.

It was only in the final drafting phase that James Madison's lingering concern — that the Senate might not act as timely as the chief executive — resulted in the adoption of the wording that made justices' appointment a joint responsibility, language that has survived to this day. In short, the founders, after much consideration and debate, intended that the Senate be part of the selection process from beginning to end.

The History of President's Practice in Selecting Justices

Nevertheless, George Washington simply ignored the language of the Constitution. Washington knew what he wanted and, as a man of action, knew how to get it. He simply informed the Senate, in writing, whom he had selected, and awaited their consent. The word "advice," he ignored.

In 1803 — after the two Federalist presidents (Washington and John Adams) had been replaced by the Democratic-Republican Thomas Jefferson — Washington's practice received Supreme Court approval. In the seminal case of Marbury v. Madison, Chief Justice John Marshall, an Adams appointee, noted in dictum that nominations, under Article II, were "the sole act of the president."

But in 1833, Justice Joseph Story, in his influential Commentaries on the Constitution, took issue with this dictum, pointing out that it conflicts with the more generally held and sensible view that the Senate shares the appointing power.

Story's view won out, at least at the Court: in 1839, in its decision in Matter of Hennen, the Supreme Court observed that the House of Representatives had found that "the power of appointment was a concurrent one, which the President and Senate exercised concurrently," and concluded that the President and Senate "both constitut[e] [an] appointing power."

Yet the practice George Washington established has largely prevailed to this day. Except for informally "sounding out" their selections before announcing them, presidents generally ignore the Senate when they select justices.

Why Lower Federal Court Judgeships Are Treated Differently

In contrast, when filling lower federal appellate and trial court judgeships, the president does consult with certain Senators — those in whose State the judge will sit. This sharing of the appointment power by the President and Senate is not, however, the result of a laudable decision by presidents to follow the Constitution. Rather, it has occurred because Chairmen of the Senate Judiciary Committee, who preside over the confirmation process of Federal judges, have demanded it.

Over the past half century, the Senate has developed practices and rules that give it a shared role in the selection of lower federal court judges. Stated bluntly but accurately, this process is one of pure blackmail: Either the Senate is given its part in the selection process, or it will not process the president's nominees.

These rules — related to the so-called "blue slip" objections sent to Senators that can block a nomination — have shifted from one Senate Judiciary Committee chairman to another. But since the mid-1950's the Senate has insisted on providing "advice" for lower court judicial selections.

This is not a non-partisan activity. For example, shortly after last November's election, the New York Law Journal raised the question of how New York would fare with two Democratic Senators, given an evenly divided Senate, noting that:

Typically, if one party controls the Senate, but there is no same-party Senator from a given state, the Senate will turn, if possible, to a same-party Governor or a same-party senior member of the U.S. House of Representatives for lower federal court judge selections. With an evenly divided Senate, the process is less clear.

The Senate's involvement in the selection process for lower court federal judges is complex, but by and large it works. Only when a clearly unqualified appointee has been pushed by a member of the Senate, or when the Senate and the White House are at odds and the Senate fails to fill vacancies, has the process erupted — as it should have — into a controversy.

One need only compare this consensus-building, deferential process with the showy, adversarial, hearing that have accompanied nominations of Supreme Court justices to understand how the early involvement of the Senate can drain controversy, and encourage at least some bi-partisan cooperation, despite the partisan nature of the process.

The Senate Should Have An Earlier, Larger Role in Justices' Appointments

When the present term of the U.S. Supreme Court ends this June, no one will be surprised if one or more letters of retirement arrive at the White House. Given the fifty-fifty party split of the Senate — and the 4-4 split of the Supreme Court if, as is likely, a conservative Justice retires — the potential for a bruising confirmation proceeding for the next nominee for the high Court looms large.

Senate Democrats have already sent the White House a clear message about the confirmation process. The forty-two Democrats who voted against their former colleague John Ashcroft as Attorney General nominee — in a startlingly partisan vote — sent a message that the Democrats have the muscle, and will use it, to launch a filibuster to block any Supreme Court nominee they find unacceptable.

There is clear precedent for such a filibuster. Republicans and conservative Democrats used a filibuster in 1968 to prevent Associate Justice Abe Fortas from becoming Chief Justice. In short, President Bush is not going to get confirmed any nominee with a philosophy resembling those of the justices, Antonin Scalia and Clarence Thomas, he named during the Presidential campaign as his ideal models for a nominee.

There is a way to avoid divisive confirmation battles for the Supreme Court — which harm the President, the Senate, the Supreme Court, the nominee, and the government alike. If the President and Senate were to work together as the founders contemplated, and as the Senate has insisted on doing with lower court Federal judges, these condemning, hurtful proceedings would surely be eliminated. Isn't it time to try what the founders had in mind?


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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