Appointments Clause

• Author: Henry J. Abraham
• Pages: 113-116

Page 113

Examining the debates of the CONSTITUTIONAL CONVENTION OF 1787, one finds that Article III, the Constitution's judicial component, proved to be its least controversial and the most readily draftable of all of its provisions. Delegates viewed the judiciary broadly as "the least dangerous branch," in the words of ALEXANDER HAMILTON, and such debate as did occur on the range and extent of the judiciary's

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power was predominantly concerned with the appointment of judges. Under EDMUND RANDOLPH'S VIRGINIA PLAN, the appointment power would have been granted to Congress as a whole, but the delegates yielded to JAMES MADISON'S countersuggestion to vest it in the SENATE alone. Further debate moved the delegates toward vesting the appointment power solely with the President. To resolve the impasse, a special committee of eleven delegates was constituted in late August. Its compromise report, suggesting presidential appointment "by and with the ADVICE AND CONSENT of the Senate," was promptly adopted by the convention in early September, and it became part and parcel of Article III, section 2, paragraph two of the Constitution. Unamended, this provision governs today.

Under the terms of the appointments clause, Presidents have nominated and the Senate has confirmed, thousands of federal jurists. Although there have been some rejections of lower federal court nominees, by and large the Senate has been a willing partner in the confirmation process?arguably even playing a perfunctory role at this level. At the apex of the judicial ladder, the Supreme Court of the United States, senators have taken their role far more seriously, rejecting or refusing to take on one-fifth of all nominees to the high court. Thus, of 145 nominations made by thirty-five Presidents from 1789 through 1990, twenty-eight were formally rejected, purposely not acted on, indefinitely postponed, or were withdrawn by the President involved. (Presidents William H. Harrison, ZACHARY TAYLOR, and JIMMY CARTER had no opportunity to choose any nominee; ANDREW JOHNSON saw all of his rejected by a hostile Senate.) Of the twenty-eight rejections, all but five occurred in the nineteenth century.

The five rejections of the twentieth century?not counting the never acted on nominations of Homer Thornberry (LYNDON B. JOHNSON, 1968) and Douglas H. Ginsburg (RONALD REAGAN, 1987)?were lower federal court judges John J. Parker (HERBERT C. HOOVER, 1930); Clement F. Haynsworth, Jr. (RICHARD M. NIXON, 1969); G. Harrold Carswell (Nixon, 1970); the aborted promotion of Justice ABE FORTAS to CHIEF JUSTICE by President Johnson in 1968; and most recently, President Reagan's nomination of United States Court of Appeals Judge Robert H. Bork in 1987, which was rejected by the decisive vote of 58?42 (see BORK NOMINATION).

Inevitably, the Senate's role in judicial appointments has frequently given rise to the questioning of its authority to weigh factors other than pure "competence" in considering a nominee's qualifications. Is it entitled to examine, for instance, political, personal, and ideological factors, or anything else that it may deem appropriate along the road to its ultimate judgment? The answer is clearly "yes," no matter how distasteful certain aspects of the senatorial investigative role in individual cases may seem to...