Advice And Consent

At The Volokh Conspiracy, Jonathan Adler and Todd Zywicki take the view of the Senate's "advise and consent" role that is consistent with the view they held for judicial nominations during the Bush Presidency. Ilya Somin takes a different view, one which I share. Zywicki writes:

When it comes to the Senate's Advise and Consent role I think that the Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch.

My view also remains consistent - that in fact the Senate owes the President no deference in his judicial choices and that the Senate is well within its rights to reject a President's judicial nominee on the basis of ideology. I believe that a judicial nominee is proposed to join the third branch of government and the Senate has the right and duty to consider what the makeup of that branch should be, just as the President does. More . . .

Zywicki makes reference to the Federalist Papers supporting his positions. I do not see it. But let's start first with the Constitution:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

-Article II, Section 2 of the United States Constitution

(Emphasis supplied.) As you can see, the President is granted certain powers either with the "concurrence" of or "by and with the Advice and Consent" of the Senate. Significantly, Article II, Section 2 of the Constitution also states expressly that "the Congress may by Law vest the Appointment of . . . inferior Officers, as they think proper . . ." thus, read literally, this provision allows Congress to strip the President completely of the power to appoint judges below the Supreme Court. This reading is consistent with Article I, Section 8, which provides that "the Congress shall have power . . . To constitute tribunals inferior to the Supreme Court . . ."

Clearly then, the text of the Constitution does not support in any way the concept of Legislative deference to the Executive regarding courts and judges inferior to the Supreme Court. The Congress can completely do away these courts or eliminate the President's power to appoint inferior judges. It is simply impossible to imagine then that the Senate must defer to the President regarding the nomination of inferior judges.

What then of nominations to the Supreme Court? I see nothing in the text of the Constitution that supports the view that the Senate owes the President deference regarding such nominations. Certainly no one argues that the President is due "deference" regarding treaties. As a matter of policy and the structure of government, I believe the Senate SHOULD give the President deference regarding his choices for the Executive Branch. I believe my view is buttressed by Article II, Section 1 of the Constitution:

Section 1. The executive power shall be vested in a President of the United States of America. He [A textual reading of the Constitution would imply that women are not eligible for the Office of the President. Do we need an amendment? What would Scalia say?] shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected . . .

(Emphasis supplied.) In our system of government, the People elect a President and in that President is vested the Executive Power. For positions in the Executive Branch, it is my view that deference should be granted to the person elected by the People to wield that power in his choices for the Executive Branch.

But the Supreme Court, in which the Judicial Power is primarily vested, is not chosen directly by the People. It is chosen by the person chosen to direct the Executive Branch, the President, and the persons who were elected to sit in the Senate by the People. This structure logically, at least to me, creates a shared power between the Executive and the Senate. The President nominates and the Senate decides whether the President's nominee is acceptable to them.

Among the criteria the President considers when choosing a nominee for the Supreme Court is the judicial ideology and views on particular issues that a nominee holds. Logically, the Senate should be able to make the same considerations.

Do the Federalist Papers contradict this conclusion? No. In Federalist 48, Madison wrote:

In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. . . . But in a representative republic, where the executive magistracy is carefully limited . . . The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.

Ironically, Madison is here assuaging fears regarding Executive overreach, stating that it is the Legislative Branch that has the upper hand in our Constitution. Would that it actually operated so. But my point is made. The Senate is granted power over the President's nominees to the Supreme Court and no deference is required by the Constitution.

In Federalist 51, Hamilton wrote:

In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle [or selection by the People]: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

Hamilton's point here is that is is permanent tenure that secures the independence of the judiciary, not the mode of choice. The mode of choice is a shared power between the Executive and the Senate. But Hamilton is clear on which Branch is superior:

In republican government, the legislative authority necessarily predominates.

Surely not an argument for Senate deference to a President's choice for the Supreme Court.

In Federalist 76, Hamilton directly addresses the President's appointment power and its relation to the Senate:

[I]t has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. . . . [T]here is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.

(Emphasis supplied.) Perhaps it would surprise Hamilton to see it now generally accepted that in fact the Senate is duty bound to bow to the wishes of the President without regard to differing views on ideology and philosophy. Yet that is the proposition as it is now generally viewed.

I respectfully dissent from that view.

Speaking for me only

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    I think you are mixing and matching (5.00 / 1) (#2)
    by me only on Fri Jun 12, 2009 at 12:07:22 PM EST
    But the Supreme Court, in which the Judicial Power is primarily vested, is not chosen directly by the People. It is chosen by the person chosen to direct the Executive Branch, the President, and the persons who were elected to sit in the Senate by the People.

    Except at the time of writing the Constitution the People didn't actually (directly) elect those to sit in the Senate.

    I think it would be most interesting to know the politics and idealogy around choosing SCJ during the 1789-1876 period.  Did Presidents alter nominees because of the of slavery?  Would (did?) the South have denied a SCJ because of that single issue?

    It is an interesting point (none / 0) (#3)
    by Big Tent Democrat on Fri Jun 12, 2009 at 12:09:53 PM EST
    But the state legislatures which chose Senators were elected by the People of the State.

    I think, in a way, you are mixing and matching - the objectives of the makeup of the Senate by the Constitution with the notion that the Senate was not a representative of the People.

    It would be interesting to review the debates of the 17th Amendment and see if the issue was discussed.


    I agree (none / 0) (#4)
    by me only on Fri Jun 12, 2009 at 12:37:42 PM EST
    I was implying that the Senate once was more beholden to the State than directly to the people.  Especially prior to "one man one vote" and removal of poll taxes.  Were there even 5 senators from the South prior to the civil war that were abolitionists? {While there is no issue as divisive as slavery today, abortion and SSM come to mind as similar issues.  People get outraged about an issue that they hold dear, but has impact on a small percentage of the population.}

    In my short political lifetime my state has had 2 Dem Senators, 1 Dem and 1 Rep senator and 2 Rep senators.  The state senate and house had been Dem until very recently.

    Without knowing, I think Senators today are less in lock step with the state they are from and more in step with their Washington brethren.  Which is a mixed bag.


    The more I think about it, the more (none / 0) (#5)
    by andgarden on Fri Jun 12, 2009 at 12:39:41 PM EST
    I think raising the point of direct election of Senators is irrelevant. Direct election did not change the institutional role of the Senate.

    It does (none / 0) (#10)
    by me only on Fri Jun 12, 2009 at 02:33:44 PM EST
    alter the view of looking to the founding fathers (the federalist papers) for guidance.  The founding fathers view of how the Senate would work compared to how it actually works is quite stark.  The issues today are not State issues (slavery definitely was), they are people issue.  Again SSM is an exception, but the economic ramifications to the various states (compared to slavery) is quite small.

    I do not always agree with the living constitution idea.  It sits uneasy with me.  However, that I am persuaded to accept it as a better approach.  The founders could not have known how the Senate would actually behave, nor could they have predicted the Amendments beyond the first ten.  Whatever they envisioned the "advise and consent" role to be is not persuasive to me.

    Armando and I do not agree about the most recent SC justices.  He was really, really against them (still is).  I don't find them to be odious, nor do I have a problem with Sotomayor.  I don't find any of these individuals to be "outside of the mainstream."  On the other hand I don't think Miers was qualified and vigorously opposed the nomination.  I don't think the Senate should be bound by the FF in opposing a nominee like Miers.


    Since Scalia and Thomas (5.00 / 1) (#12)
    by NYShooter on Fri Jun 12, 2009 at 03:25:51 PM EST
    vote lock-step with Roberts and Alito most of the time, I would include them with "most recent" SC judges. And, unfortunately, even tragically, I must disagree with your opinion of them as "not odious."

    By any criteria I know of, ideology, not deference to "original intent," is the main factor driving their decisions. Scalia, by his bored and condescending explanations of his votes, hardly even tries to hide it.

    They are conservatives first, and judges, using the definition most scholars would ascribe to be have been the intent of our founders, a distant second.

    If you had a scorecard, Oligarchs on one side, and a majority of our citizens on the other, I believe you would find they vote, almost without exception, for the benefit of the "Ollies" ......automatically.

    If that isn't "odious," I don't know the meaning of the word.


    Ok, so what makes Roberts any different (none / 0) (#11)
    by andgarden on Fri Jun 12, 2009 at 03:18:09 PM EST
    from Bork? Should he just have been confirmed too?

    I don't know (none / 0) (#14)
    by me only on Fri Jun 12, 2009 at 03:33:53 PM EST
    I was in college at the time Bork was nominated.  I know nothing about the man.

    This is a blog post (5.00 / 2) (#8)
    by oculus on Fri Jun 12, 2009 at 01:20:30 PM EST
    So I suppose tradition requires links to other blos posts?  But why?  This is persuasive writing bt BTD w/citation to both the US Constitution and the Federalist papers. Nice job.

    The modern custom actually agrees with you (none / 0) (#1)
    by andgarden on Fri Jun 12, 2009 at 11:54:49 AM EST
    Recently, the Senate has been mostly deferential, but not entirely. I think it's pretty clear that Bork was rejected for ideological reasons.

    So the Senate doesn't like to base its confirmations (or non confirmations) on ideology, but it reserves the right to.

    Pronouns are to be understood (none / 0) (#6)
    by KeysDan on Fri Jun 12, 2009 at 12:53:07 PM EST
    in context. The use of "He" in reference to the President seems to have been deprived of practical significance by the nineteenth amendment to the constitution.

    Actually (none / 0) (#7)
    by Steve M on Fri Jun 12, 2009 at 01:09:09 PM EST
    a pronoun was made to take the place of a noun,
    because saying all those nouns over and over can really wear you down.

    You clearly are not a textualist (none / 0) (#9)
    by Big Tent Democrat on Fri Jun 12, 2009 at 01:52:40 PM EST
    Moreover, when the voting age was lowered to 18, what was the effect on the clause in question?

    Yes, more of a contextualist; (none / 0) (#13)
    by KeysDan on Fri Jun 12, 2009 at 03:26:22 PM EST
    the textual analysis of the clause is fodder for Scalia.  Maybe, age 18 trumps the original 35.  Another one for Nino to ponder.

    Very persuasive (none / 0) (#15)
    by Maryb2004 on Fri Jun 12, 2009 at 03:34:51 PM EST
    I agree with Oculus.  This is more than a blog post.  (Not that there is anything wrong with blog posts.)

    I can imagine (5.00 / 1) (#16)
    by Steve M on Fri Jun 12, 2009 at 03:58:20 PM EST
    that if the state of technology had been different during the founding, perhaps the Framers would have refrained from writing letters to the newspapers, and instead anonymously published their musings on the proposed Constitution as blog posts at publius.org.

    Of course, Ed Whelan probably would have outed them.  So that wouldn't work.


    "advise and consent" (none / 0) (#17)
    by diogenes on Sat Jun 13, 2009 at 11:11:44 AM EST
    I assume that all those who think that Republicans should not oppose Sotomayor on ideological grounds favored the nomination of Robert Bork to the Supreme Court.