August 11, 2010 – Federalist No. 76 – Cathy Gillespie

Wednesday, August 11th, 2010

Federalist No. 76 examines the appointing power of the Executive Branch.  One of our blog commenters, Jimmy Green, summed up this paper well today:

“To keep the Executive somewhat honest the legislative branch must consent on appointments.”

This same subject was discussed in Federalist 66, in the context of powers of the Senate:

“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.”

Publius is saying that the Senate’s role in the Presidential appointment process is to decide if the President’s nominee is fit for the position nominated, on a merit basis, i.e. is the person qualified to serve in the position for which he or she is nominated?

How is this relevant today? With our newest Supreme Court Justice Elena Kagan’s confirmation in the news, it’s easy to answer that question!

Historically, there have been two views regarding the role of the Senate in the Presidential nomination process of Supreme Court Justices. The two quotes below are excellent examples of each view:

Senator Orrin Hatch stated in 1993:

“If a nominee is experienced in the law, highly intelligent, of good character and temperament, and — most important — gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, the mere fact that I might have selected a different nominee will not lead me to oppose the President’s nominee.”

Senator Barak Obama stated in 2006:

“There’s been a lot of discussion in the country about how the Senate should approach the confirmation process. There’s some who believe that the President, having won the election, should have complete authority to appoint the nominee, and that the Senate should only examine whether or not the Justice is intellectually capable and is nice to his wife, or she is nice to her husband. That, once you get beyond issues of intellect and personal character, then there shouldn’t be further question as to whether the Judge should be confirmed. I disagree with the view.  I believe that the Constitution calls for the Senate to advise and consent, that, meaningful advice and consent includes an examination of a judge’s philosophy, ideology, and record.”

Which of the above views have prevailed over the past few years? Examining the partisan breakdown of recent Supreme Court nominations provides at least a partial answer to that question.

President Clinton’s Supreme Court nominee, Ruth Bader Ginsburg, was confirmed in 1993 by a vote of 96-3, supported by 41 of 44 Senate Republicans, 93%.

President Clinton’s Supreme Court nominee, Stephen Breyer, was confirmed in 1994 by a vote of 87-9, supported by 33 of 42 Senate Republicans, 78%.

President Bush’s Supreme Court nominee, John Roberts, was confirmed in 2005 by a vote of 78-22, supported by 22 out of 44 Democrats, 50%.

President Bush’s Supreme Court nominee, Samuel Alito, was confirmed in 2006 by a vote or 58-42, supported by 4 out of 44 Democrats, 9%.  One Senate Republican voted against Alito.

Were Justice Roberts and Justice Alito less qualified than Justice Breyer and Justice Ginsberg, or was an ideological standard applied by the Senators who chose to vote against Justice Roberts’ and Alito’s nominations?

President Obama’s Supreme Court nominee, Sonia Sotomayor, was confirmed in 2009 by a vote of 68-31, supported by 9 out of 40 Republicans, 22%.

Last week President Obama’s Supreme Court nominee, Elena Kagain, was confirmed by a vote of 63-37, supported by 5 out of 41 Republicans, 12%.  One Democrat voted against Kagan.

This Senate.gov weblink: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm provides an interesting look at our country’s history of Supreme Court nominations.  Scrolling through these votes, a more partisan voting trend has emerged in very recent years.  While Judge Bork was an anomaly, three Justices in the Reagan years were confirmed unanimously: Scalia, O’Connor and Kennedy, with Kennedy being the last Justice to be confirmed unanimously, in 1987.  The attitude of the Senate regarding their role in the appointments process seems to have shifted into partisanship over the last 20+years.

What is the Senate’s proper role in the Presidential Appointment process?

Publius answers that question this way:

“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.”

Partisanship in the nomination process is difficult to dial back once allowed to seep in.  Is it in our Nation’s best interest for the Senate to adopt the attitude articulated by Senator Hatch in 1993 or the views articulated by President Obama in 2006?

I believe the founders intended the Senate to advise and consent based on their assessment of a nominee’s qualifications more than ideology. However, unless both parties can show evidence of dropping the partisan, ideological criteria for evaluating the President’s nominees – any President’s nominees – it is certainly not in the interest of one party to evaluate nominees based on qualifications while the other party uses an ideological measuring stick.

“We the people,” must educate ourselves regarding our founders’ intentions, formulate our opinion, and make our voice heard through our vote.   As Janine Turner, my good friend and Constituting America founder and co-chair likes to say, “Your vote is your voice.” Use it!

Good night and God Bless,

Cathy Gillespie

 

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