Time for a Senate Confirmation Philosophy

October 17, 2005

Conservatives have been inquiring about Harriet Miers’ judicial philosophy; perhaps they also ought to be focusing on the Senate’s confirmation philosophy.

I have been arguing in this space that critics of the Miers’ nomination should make clear the applicability of their criticism. That is, it is one thing for them to criticize President Bush on the appointment (I have myself), even to the point of urging him to withdraw it if they choose. But if their advocacy fails, they better think twice before they lobby the Senate to reject her nomination.

I have contended that the Constitution’s Advice and Consent clause does not give the Senate coequal power over judicial and other appointments. Some people I respect have taken issue with my assertion that these nominations are a matter of the president’s prerogative and that the Senate must confirm unless the nominee is unqualified or of unfit character.

UCLA law professor Stephen Bainbridge notes that “In government, prerogative powers refer to those powers vested solely in the executive,” like the pardon power, recess appointments and a few others.

Fair enough. The term “prerogative” may well be an overstatement. I didn’t mean to suggest that the Senate was to be merely a rubber stamp, as I clearly stated the Senate’s role was to assure the nominee had the requisite qualifications and character.

But Professor Bainbridge’s disagreement with me goes beyond semantics. He rejects my contention that the Senate’s role should be limited to vetting the nominee’s qualifications and character. He cites a few constitutional scholars, like John McGinnis, who have argued that the Constitution empowers the Senate to confirm or reject nominees (SET ITAL) for any reason (END ITAL) at all. “Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up.”

Bainbridge writes, “To be sure, as McGinnis notes, Alexander Hamilton thought the Senate could only reject a nominee for ‘special and strong reasons,’ but that qualification is nowhere in the Constitution.”

But doesn’t an “originalist” approach to constitutional interpretation oblige us to inquire what the Framers understood the meaning of “Advice and Consent” to be? Surely Hamilton’s Federalist 76 cannot be dismissed so casually if it gives us some insight as to the Framers’ original understanding.

Hamilton wrote: “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.”

That section and others in the piece tend to support my conclusion — and that of Mr. McGinnis — that Hamilton, at least, thought the Senate could only reject nominees for “special and strong reasons.” Hamilton definitely was concerned about so-called “cronyism,” but I think precisely because he believed cronyism, absent a check in the Senate, might lead to the appointment of an unqualified or unsavory character.

Professor Bainbridge also said that “in effect,” I urged that Miers’ critics “ought to shut up because said nomination was a matter of ‘presidential prerogative.'” Just for the record, I most emphatically did not urge Miers’ critics to shut up. Again, I merely cautioned that they consider the difference in criticizing the president’s nomination and actually advocating that the Senate reject her.

If conservatives do press the Senate to reject her, they better be sure to do so on grounds consistent with those they’ve urged rejection of judicial nominees in the past, and with those they would like to see urged in the future. Aside from whether my relatively narrow view of “Advice and Consent” is correct, I believe I can safely say that in practice, conservatives have certainly given this view de facto credence.

If Republicans thought they could properly reject the president’s judicial nominees for political reasons alone, or on the basis of judicial philosophy, they’ve certainly done their best to prove otherwise. How else do you explain their overwhelming affirmation of the radically liberal and activist Ruth Bader Ginsburg?

By contrast, Democrats, since Judge Bork’s nomination, have often — though not always — rejected qualified nominees purely for reasons of politics and judicial philosophy.

If Republicans continue to construe “Advice and Consent” more narrowly than Democrats, they’ll continue to lose because Republicans will confirm otherwise qualified, but liberal activist nominees and Democrats will reject qualified constitutionalists.

Indeed, if the Bainbridge/McGinnis formulation is correct — and it may be — shouldn’t someone make sure to get the memo to Senate Republicans? Isn’t it time they developed a coherent “confirmation philosophy”? Otherwise they’ll be guaranteeing themselves a disadvantage in perpetuity on a matter — judicial confirmation — that ranks among the most important to the future of our republic.