Senate Judiciary Committee
Established in 1816 as one of the Senate's original eleven standing committees, the Judiciary Committee quickly became a powerful influence on national legislation and, before the Civil War, played a role in spurring the adoption of the Compromise of 1850. The committee's power was later felt during the post–Civil War era when it shared jurisdiction over federal Reconstruction efforts.
Despite the committee's broad impact on national government, it is most popularly known for investigating nominees to the federal bench (see Selection of Justices). While the Constitution requires the advice and consent of the full Senate on presidential nominees, in 1868 the Senate directed that all nominations would first be referred to an appropriate committee for review. Customarily, then, the Judiciary Committee receives the president's judicial nominations from the full Senate for investigation. Afterward, the committee reports its findings and recommendations (if any) to the full Senate for a vote on the nominee.
The committee's handling of nominations has been a subject of controversy almost from the origins of that practice. Early assessments of the committee leveled the same charges that were brought against the full Senate's treatment of nominations, that it was a system rife with patronage and secrecy. Recent attention has been drawn, however, to the committee's superficial inquiry into a nominee's qualifications and the dangers posed by that practice for a competent and independent judiciary. On closer examination, the sheer number of nominees currently referred to the committee makes it improbable that a detailed inquiry may readily occur. For example, in the year 1989–1990, President George H. W. Bush nominated forty‐eight district court and eighteen appellate court judges, and in 1990 Congress created eighty‐five new federal judgeships. Under such constraints, it is not unusual for committee chairs to further delegate responsibilities to subcommittees for reviewing lower court nominees.
In the case of Supreme Court nominees, however, the full committee normally conducts a hearing. The present dispute in this setting is not the shallowness of the committee's questioning, but rather the depth and extent of its probing into the nominee's background. The furor surrounding Justice Clarence Thomas's nomination suggests to some the need to remove a nominee's personal qualities and political affiliation from the committee's scrutiny. However, the history of Supreme Court nominations shows that personal and political characteristics play a considerable role in the committee's deliberations. Of the twenty‐six persons whose nominations to the Court have been rejected or withdrawn, only five are currently seen as judicially unqualified. Indeed, vigorous opposition during hearings was brought to bear even on the nomination of such luminaries as Justice Louis Brandeis (the first Jewish nominee), Justice Hugo Black (a former Ku Klux Klan member), and Justice Felix Frankfurter (a foreign‐born, Jewish liberal). (See Nominees, Rejection of.)
But not all struggles within the committee's hearing end in triumph for the nominee. Six nominees out of forty have been rejected or withdrawn in the last sixty years. Most memorable among these is Justice Abe Fortas, President Lyndon Johnson's nominee for chief justice, who resigned from the bench amid allegations of financial misconduct. In another example, Judge Douglas Ginsburg withdrew his name after accusations surfaced of former illegal drug use. Finally, Judge Robert Bork was cast by some committee members as a rigid intellectual, and after his name was recommended unfavorably to the full Senate, President Ronald Reagan's nominee was defeated (see Nominations, Controversial).
While committee hearings concerning Supreme Court nominees have historically delved into political and personal qualifications, little precedent exists for the current state of the hearings as a national cause célèbre. For the nation's first 140 years, the nominees were rarely invited to appear before the Senate, and if they were invited, the nominees declined out of a sense of decorum. However, to answer questions regarding his actions as attorney general, Harlan Stone, in 1925, became the first nominee to appear before the committee. Next, Felix Frankfurter addressed the committee in 1939 when slanderous accusations surfaced following his nomination. Only one other justice appeared at the committee's hearing until John Harlan II's testimony in 1955. The subsequent nineteen nominees have all made statements during the committee's investigation. Because only 22 of the 147 Supreme Court nominees have been interrogated by the committee, those calling for the committee's reform in the post‐Thomas era find support in the relatively high quality of the justices approved by the Senate without personal appearances. Perhaps, after all, the committee's recent practice of inviting testimony by the nominee is not necessary for ensuring a competent and independent Supreme Court.
Whatever may be the place occupied by presidential nominees, the future of the Judiciary Committee will remain unique within American political life. Operating constitutionally as a screen on executive nominations, the committee is a fulcrum balancing the powers exerted by the coordinate branches. By nomination, presidents seek to leave a mark on a judicial institution that will far outlive their administration. The Senate's power of advice and consent acts as a veto of presidential designs. Unlike the check of legislative override, the ability to reject a judicial nominee has more than a political background. Instead, the Senate is composing a supreme and independent judicial body that itself exercises judicial review over Congress's activities. The forces at play in the Judiciary Committee, then, touch the foundation of American constitutionalism and will continue to make the committee's work, in any form, a worthy object of public attention.
Bibliography
- Henry J. Abraham, Justices and Presidents,
3d ed. (1991). - Robert C. Byrd, The Senate (1789–1989): Addresses on the History of the United States Senate, edited by Wendy Wolf (1989)
— Kermit L. Hall and Mitchell S. Ritchie
