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

This role of the Senate as an active and politically driven participant in assessing nominees traces back to the Washington administration.39 The Senate's first significant assertion of its constitutional power to reject executive nominees came not in the form of a judge, but as a candidate for a naval post.40 The Senate rejected Washington's nominee for a Savannah naval post as a means of "senatorial courtesy" to the two senators from Georgia, who had a candidate oftheir own.41 Although this was not a Supreme Court nomination, the Senate's action in this instance was significant because it established from the beginning that the Senate could reject a presidential nominee without regard to his qualifications.42 The second significant Senate rejection occurred in 1795 when the Senate rejected Washington's nominee for Chief Justice, Associate Justice John Rutledge." Although it has been suggested that Rut

ledge was prejudiced by rumors of mental instability, his rejection was most likely due to his opposition of the Jay Treaty.44 Thomas Jefferson commented, "The rejection of Mr. Rutledge by the Senate is a bold thing, because they cannot pretend any objection to him but his disapprobation of the treaty."45 The rejection of Rutledge's nomination for Chief Justice is significant in revealing the Framers' intentions because: (1) several of the senators who voted against Rutledge had been delegates at the Constitutional Convention, and (2) the principal opposition to Rutledge came from the Federalists, who had favored a strong executive power.46

As Senate rejections of executive nominees during the Washington administration laid the foundation for the Senate's role as an active and political assessor of nominees, Senate rejections based on political grounds during the nineteenth century fortified this traditional role for the Senate.47 Early in the nineteenth century, the Senate rejected President Madison's Supreme Court nominee, Alexander Wolcott, even though Madison's party controlled the Senate.48 Scholars attribute the rejection of Wolcott to his strict (and controversial) enforcement, as United States Attorney, of the highly unpopular Embargo and Intercourse Acts.49 President Tyler experienced similar politically based opposition from the Senate in 1843 when he unsuccessfully nominated John C. Spencer, a former Secretary of the Treasury from New York.50 Unfortunately for Spencer, he had run afoul of the New York Whigs and the charismatic Henry Clay, who clearly dominated the party against the politically weak President.51

Toward the latter part of the nineteenth century, the Senate continued to refuse to confirm executive nominees on political grounds. In 1870, the Senate rejected President Grant's nominee, Ebenezer Hour, for political reasons, most notably his opposition to Andrew Johnson's impeachment.52 In a similar manner, the Senate confounded President Cleveland in 1894 by

rejecting two of his nominees for the Supreme Court William Homblower and Wheeler Peckham.53 Cleveland had aroused the Senate's ire by refusing to nominate persons suggested by New York's powerful Senator, David Hill.54