The Framers on Advice and Consent

I have posted on this topic before, but with the retirement of Justice O'Connor and the looming Supreme Court vacancy, the question is worth asking again: Are the Democrats being true to the Constitution in their pleas to the President about his Supreme Court nominee?

Hillary Clinton recently said that, in light of the Supreme Court vacancy, President Bush should "take seriously the Constitution’s charge and to engage the U.S. Senate – both Republicans and Democrats – in a process of genuine consultation in order to identify and to ultimately confirm a consensus nominee." Ted Kennedy, in a floor statement in the Senate, noted that "consultation was not mentioned by the Majority Leader in his address on judges earlier this week, and the omission is glaring, since consultation is the heart of the 'advice' requirement in the constitutional requirement that the President appoint judges with the 'advice and consent' of the Senate. Under the Constitution and the Senate Rules, every Senator's hands are on the oars of this vessel." Chuck Schumer, in a press release anticipating the retirement of the Chief Justice, said in a letter to the president that was signed by all but one of the Democratic senators, "Balanced Supreme Court nominations have been arrived at through careful consideration, close consultation, and bi-partisan consensus. I hope that you will follow in this important tradition as the historic duty of your first Supreme Court nomination approaches. Democratic Senators are more than ready to meet with you in a spirit of bipartisan cooperation. You pick the time and the place and we will be there."

And of course, the "Gang of 14," in their "agreement," said, "We believe that, under Article II, Section 2, of the United States Constitution, the word 'Advice' speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

Is this really the role the Founders intended the Senate to play in the nomination process? A review of the relevant history suggests the answer to that question is a resounding "no."

In Federalist 66, Alexander Hamilton wrote,

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.

Not content to leave the explanation of this power at that, Hamilton wrote in Federalist 76 that:

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference
between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It 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 addition to this, it would be an efficacious source of stability in the administration.

The Framers would no doubt find the quotations from the above-listed Senators, as well as the statement in the Gang of 14 agreement, mind-boggling, and contrary to the power of appointment granted to the President. Senators do not yet have their hands on the oars (although it is a bit unseemly for Senator Kennedy to use nautical analogies). And while the Gang of 14 may think that advice means pre-nomination consultation, those arguing for the ratification of the Constitution disagreed.