Article II, section 2, of the Constitution provides that the president, “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” This textual division of power—the president's power to nominate and the Senate's power to confirm—is a crucial part of the system of checks and balances the framers created throughout the federal government. While the text establishes the formal requirements for appointment, it does not specify the rules or factors either the president or the Senate are to consider in carrying out their respective roles. Since the Constitution's adoption, those roles have been determined by the political process, and it is that process that has produced both controversial nominations and the Senate's role in response to them. The late nineteenth century was characterized by a strong Congress and a weak presidency. That balance, however, changed at the beginning of the twentieth century as the executive branch grew in power and influence with the creation of regulatory agencies under the control of the executive branch. In addition, the Seventeenth Amendment, which provided for the direct election of senators by the people (instead of the state legislatures), increased the power of the president, as the leader of his party, over that of the senators.
The Senate's role in confirmation is reactive. Presidents are motivated by three concerns in choosing a nominee: politics, policy, and professionalism. Political concerns reflect interest‐group politics, with concessions to a geographical region, a particular racial or religious group, or a faction within the president's party. Policy considerations involve the political and judicial philosophy of a candidate. Professionalism includes the judicial abilities of a nominee. Professional criteria are those of the idealized common‐law judge: the ability to reason from precedent and to write opinions that are well reasoned. These criteria allow for the law to change, but only gradually. They allow for predictability and limit the judicial role, while maintaining the judiciary as the ultimate arbiter of the pace of change.
Political concerns tend to dominate when presidents have limited policy objectives and do not perceive the courts as important policy makers. This occurred often in the late nineteenth century when presidents were relatively weak and when major issues, such as the tariff, were unlikely to come before the courts. Professionalism dominates when a president expects the Court to check the other branches. This occurred during the Taft, Hoover, Eisenhower, Nixon, and Ford administrations. Policy concerns dominate when presidents attempt to transform governmental structures or policies and perceive the Court as a necessary ally in accomplishing that agenda. Theodore Roosevelt, Franklin Roosevelt, and Ronald Reagan provide the clearest examples of this pattern.
Most justices have met all three concerns and have been confirmed by the Senate without controversy. There are occasions when an appointment sparks controversy, but the Senate plays only a limited role. Examples are the revelation that Hugo Black had belonged to the Ku Klux Klan or that Douglas Ginsburg had smoked marijuana. The Senate confirmed Black, a senator, with little debate, and Ginsburg's nomination was withdrawn before the Senate acted. Occasionally, the nominee has aroused vigorous opposition, but has been confirmed nevertheless, as when Louis Brandeis was nominated in 1916 and when William Rehnquist was elevated from associate justice to chief justice in 1986. In both instances, the candidate's professionalism was at issue, but political differences between the president and a number of senators best explain the opposition. With the Brandeis nomination there was also some anti‐Semitic feeling among his opponents. Judge Clarence Thomas in 1991 withstood last‐minute allegations of sexual harassment to win confirmation after a bruising battle before the Senate Judiciary Committee.
The Senate has rejected or forced a president to withdraw a nomination twenty‐five times since 1789—only five times in the twentieth century. During the eighteenth and nineteenth centuries when political issues dominated presidential selection, they also dominated Senate consideration. President John Tyler, who had angered both Whigs and Democrats, failed to secure confirmation of five nominees. Republicans in the Senate forced the rejection of President Grant's nominee, Ebenezer Hoar, in 1879 because they wanted one of their own faction to receive the appointment. When the presidency and the Senate were controlled by different parties, occasionally the Senate could muster the opposition to block a vulnerable candidate. The Senate rejected John J. Parker in 1930 because of his perceived antilabor and anti‐African‐American judicial decisions while on the federal appellate bench. Similarly, Robert Bork was rejected in 1987 because he was perceived as too conservative by the Senate.
Presidents determine a candidate's fitness and policy orientation by using the Justice Department to make inquiries. The Senate, since 1925, has held hearings by the Senate Judicial Committee. Much scholarly and popular debate over the role the Senate should play revolves around the issue of whether senators should inquire into a nominee's policy orientation. Judging is not purely an act of craftsmanship; it also involves policy making. Since the Constitution does not bar the Senate from determining qualifications for the Supreme Court, a senator may inquire whether the nominee possesses the requisite professionalism and policy judgment to occupy a seat on the nation's highest court.
See also Appointment and Removal Power; Nominees, Rejection of; Selection of Justices.
Bibliography
- Laurence Tribe, God Save This Honorable Court (1985)
— Rayman L. Solomon
