Orrin Hatch and Alexander Hamilton on advice and consent
posted at 12:31 pm on April 13, 2014 by Jazz Shaw
Senator Orrin Hatch has an editorial up this week in which he argues passionately in defense of a strong role for the Senate in the nomination process. In it, he focuses largely on two areas; the filibuster and the blue slip process. (The latter allows the Senators from the home state where a judicial nominee would serve to have a larger voice in the approval process.) It’s a fairly basic argument, in which he mourns the weakening of the filibuster and implores the leadership to not similarly gut the blue slip.
Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.
Anyone serious about the Senate’s constitutional “advice and consent” role knows how disastrous such a move would be. Sen. Leahy warned in 2003 that the majority was trying to “rewrite Senate history in order to rubberstamp the federal judicial nominees of this White House and that this will cause long-term damage to the Senate and the courts.”
A confirmation process without filibuster or blue slip veto would weaken the collaboration between the president and the Senate, further politicize the confirmation process, and ultimately produce a more politicized federal judiciary.
I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.
Neither of these are actually constitutional questions, of course. Both the filibuster and the blue slip are simply rules of the Senate, and as such subject to change as the members decide. That comes straight from Article 1, Section 5.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Beyond the rules of order, though, we still hear arguments – generally from the party controlling the White House – that all of this procedural nonsense is a big waste of time, well beyond the intention of the Founders, and that the President, having won the election, should be able to appoint who he wishes. I’ve been close to that school of thought at times, since there is some validity to it. The appointments would, logically, reflect the tastes of the man or woman who just won the national election, and the Senate should really just be a backstop against an absolutely corrupt choice.
But is that really what the Founders intended? Some parts of the constitution are rather murky, with very little historical context to clarify them for us. (For just one of many examples, what the heck did “high crimes and misdemeanors” mean at the time it was written? I submit that nobody alive today knows for sure what they meant.) But in the case of advice and consent, Alexander Hamilton left us a pretty good road map in Federalist 76. He starts out with an explanation which, at first glance, actually makes it sound like it was their intention for the President to do all of the picking because he would be more qualified to the task.
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
Hamilton supports this argument by saying that a single individual would not be subject to the distractions and internal fighting that any committee would be subject to, and as such could make appointment decisions with greater clarity of mind. So why not eliminate the role of the Senate entirely? On the one hand, he felt that such an advisory role was a prudent precaution, but he also demonstrated a complete lack of ability in prognostication when he claimed that it shouldn’t matter, because the Senate would hardly ever shoot down a Presidential nomination to begin with.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
Hamilton’s judgement about why it would mostly be foolish to oppose a nomination is a solid one. If you succeed in defeating the choice, you don’t get to pick the replacement, so you’ll probably get more of the same if not worse. Where he failed was in his prediction that this would prevent the Senate from often defeating them, which should come as hilarious news to any Democrat in 2005 or any Republican today.
But in the end, Hamilton registered the final word on why the Senate is not a rubber stamp. (A concern expressed by Hatch in his editorial above.)
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.
And there you have it. Even if it is eventually slimmed down to nothing more than a requirement for rounding up 51 votes with no debate, the reason for the role of the Senate is right there for us. And unless you plan on amending the Constitution in direct defiance of what the Founders expressed, that’s how it’s going to stay.