Supreme Court power play: Assessing the Appropriate role of the senate in the confirmation process

Washington and Lee Law Review, Summer 2001 by Yates, Jeff, Gillespie, William

It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their

deliberations a more diffusive knowledge of characters. It would be less easy for a candidate to intrigue with them, than with the Executive Magistrate.28

Nathaniel Gorham took a different view, arguing:

[T]he Executive will be responsible, in point of character at least, for a judicious and faithful discharge of his trust, he will be cardi to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of government where they reside, as the Executive .... Public bodies feel no personal responsibility, and give full play to intrigue and cabal.29

Ironically, a compromise plan proposed by Gorham, which closely paralleled the final plan, was defeated by a 44 vote.30

Further debates on July 21 and August 23 proved to be inconclusive and the issue was not reconsidered until September 4, when the Special Committee on Postponed Matters made a report providing for executive nomination of Supreme Court Justices with the advice and consent of the Senate.31 Debate on the Committee's proposal took place on September 6 and 7 and although Charles Pinkney and James Wilson voiced opposition to the Committee's proposal on the grounds that it gave the Senate too much power, the proposal was agreed to nem. con. by the Framers.32 Supporting the Committee's plan was Gouverneur Morris, who had previously advocated appointment by the executive.33 Morris asserted, "[A]s the President was to nominate, there would be responsibility; and as the Senate was to concur, there would be security."34

In examining the Convention's record, it becomes ostensible that the Constitutional Framers, who had for months retained a proposal granting the Senate sole appointment power, had not intended to eviscerate the Senate's vital role in the selection process. Professor Charles Black reaches a similar interpretation, asserting:

This last vote must have meant that those who wanted appointment by the Senate alone - and in some cases by the whole Congress - were satisfied that a compromise had been reached, and did not think the legislative part in the process had been reduced to a minimum. The whole process, to me,

suggests the very reverse of the idea that the Senate is to have a confined role.

Black futher argues that the Framers contemplated the Senate's active questioning of a nominee's policy values.36

B. Early Applications of 'Advice and Consent" by the Senate

The proposition that the Senate may actively investigate a nominee's ideological values and vote against a nominee for political reasons is supported by the Senate's application of the "advice and consent" phraseology during the eighteenth and nineteenth centuries. During the years 1787 through 1900, the Senate refused to confirm twenty-two Supreme Court nominees,37 often for political reasons.38 As detailed below, the Senate's early practices evince a historical tradition of the Senate as an active and political participant in the confirmation process.