Advice and Consent to Supreme Court Nominations

• Author: Madeline Morris, Walter Dellinger
• Pages: 47-51

Page 47

The proper scope of the SENATE'S role in confirming Supreme Court nominees has been the subject of recurring and often heated debate. The Constitution provides simply that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ? Judges of the Supreme Court." Although the Senate also has the constitutional responsibility of advising on and consenting to presidential appointments of ambassadors, lower federal court judges, and many executive branch officials, debates over the nature of the Senate's role have generally arisen in the context of Supreme Court nominations.

The central issues of controversy have concerned the criteria the Senate should consider in making confirmation decisions and the appropriate range of questions that may be posed to and answered by a nominee. Debated points regarding appropriate criteria for confirmation

Page 48

have included the degree to which the Senate should defer to the President's preferred choice and whether it is appropriate to take a nominee's political views or judicial philosophy into account. The debate about the scope of questioning has centered on whether it is appropriate for senators to ask and nominees to answer questions about the nominee's political views and judicial philosophy and how these views and philosophy would apply to issues that may come before the Court.

Presidents and some members of the Senate have argued that selecting Justices is the President's prerogative and that, although the President may take a judicial prospect's philosophy into account, the Senate must limit its inquiry to whether the nominee has the basic qualifications for the job. These commentators maintain that the Senate should defer to the President's nomination of any person who is neither corrupt nor professionally incompetent. Others have contested this view and argued that the Senate, when it decides whether to consent to a nomination, is permitted to take into account the same range of considerations open to the President and to make its own independent determination of whether confirmation of a particular nominee is in the best interests of the country.

Presidents have often taken the position that the Senate should defer to the President's choice. President RICHARD M. NIXON, for example, claimed in 1971 that the President has "the constitutional responsibility to appoint members of the Court," a responsibility that should not be "frustrated by those who wish to substitute their own philosophy for that of the one person entrusted by the Constitution with the power of appointment." This view was echoed by President RONALD REAGAN, who asserted that the President has the "right" to "choose federal judges who share his judicial philosophy" and that the Senate should confirm Presidents' nominees "so long as they are qualified by character and competence."

Many of those who agree with Presidents Nixon and Reagan believe that the proper standard for Senate review of Supreme Court nominees is the deferential standard that the Senate has typically accorded to presidential nominations of executive officials, whose confirmation is generally expected unless the nominee is found to lack the character or competence necessary for the job. This analogy between executive and judicial appointments is not wholly apt. Whereas the President is entitled to have in the executive branch officials who share the President's philosophy and will carry out the chief executive's policies, judicial nominees are expected to exercise independent judgment. Those favoring a more active Senate role in the judicial confirmation process suggest that the proper analogy is to the Senate's role in ratifying or rejecting treaties or to the President's decision to sign or veto legislation?instances in which an independent exercise of judgment by each branch is thought appropriate.

The consideration of the APPOINTMENTS CLAUSE by the CONSTITUTIONAL CONVENTION OF 1787 offers some support for the position that senators should exercise their own independent judgment about whether to confirm a nominee. The convention considered the issue of judicial appointments separately from its consideration of the appointment of executive officers. For much of the summer of 1787, the evolving drafts of the Constitution gave the Senate exclusive authority to appoint judges. Suggestions for giving the appointing authority to the President alone rather than to the Senate were soundly defeated.

On May 29, 1787, the convention began its work on the Constitution by taking up the VIRGINIA PLAN, which provided "that a National Judiciary be established ? to be chosen by the National Legislature.?" Under this plan, the executive was to have no role at all in the selection of judges. When this provision came before the Convention on June 5, several members expressed concern that the whole legislature...