The Senate’s check on judicial nominations

The U.S. Senate’s constitutional role in the appointment process for federal judges empowers it to thwart presidential nominations to the bench, including those nominated to the Supreme Court. More than one president in our history has felt the stinging rejection of a prospective member of the High Court.

Article II, section of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of Senate,” shall appoint “Judges of the supreme court.” The “appointment power” is a shared power, jointly exercised by the president and the Senate, and thus a vital cornerstone of the doctrine of checks and balances.

At the outset of the founding, it was assumed by political actors and commentators that the Senate would likely defer to the president’s judgment unless there were clear reasons why a nominee should be defeated. In Federalist No. 76, Alexander Hamilton explained the Senate’s likely deference: “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.” Justice Joseph Story, one of the greatest scholars ever to hold a seat on the Supreme Court, observed in his magisterial three volume commentary on the Constitution: “The more common error (if there shall be any) will be too great a facility to yield to the executive wishes, as a means of personal, or popular failure.”

An initial disposition of deference to the president, like an initial judgment on any other issue in life, however, does not necessarily lead to an ultimate approval. The Senate, historically, has exercised a vigorous review of the qualifications of presidential nominees to the Supreme Court, which has led it to defeat roughly one out of every five of the president’s choices. Close scrutiny of the qualifications, skills, temperament, experience and expertise of a nominee who, if approved by the Senate, will enjoy what is, for all intents and purposes, a lifetime appointment.

How could it be otherwise? If members of the Senate behaved like a rubber stamp, there would be no value in adding the Senate to the appointment power, no expected benefit derived from the wisdom, insights, values and judgment of a body whose advice and consent to the president’s nomination power was viewed by the framers of the Constitution as a huge improvement over the English King’s sole authority to appoint people to judgeships. Senators, like presidents, are expected to bring to bear their own independent judgment of the nominees’ political, judicial and constitutional philosophies, a duty particularly important when the balance of the Supreme Court is at stake.

Senate consideration and occasional rejection of controversial presidential nominees to the Court reflects politics and partisanship, as well as the purported qualifications of the candidate. History records a checkered record: some controversial nominees have been ultimately approved after a bitter fight, while others were doomed, seemingly from the start.

In 1916, President Woodrow Wilson nominated Louis Brandeis to the Supreme Court. Although regarded as one of the nation’s very best attorneys, Brandeis was controversial, not merely because he was a leading progressive voice on issue of social justice but because he was Jewish at a time when anti-antisemitism was pervasive. His nomination was bitterly contested and lasted for four months before he was confirmed by the Senate on a 47 to 22 vote. By all accounts, Brandeis went on to become one of the most influential members of the Supreme Court in American history.

Seven decades later, President Ronald Reagan nominated Robert Bork, a prominent judge on the D.C. Circuit Court of appeals, a former Yale law school scholar and professor, and an influential conservative voice. President Reagan exalted Judge Bork’s personal and political beliefs in nominating him to the Court, but told the Senate that it should look only at Bork’s professional qualifications. The Senate, controlled by Democrats, did not share Reagan’s double standard and believed that the Senate, like the president, could take account not only of Bork’s record, but also his personal and political values. Bork’s defeat, by a vote of 58-42, clearly did reflect the partisan politics and values of Democratic members of the Senate, but also his lengthy resume of speeches and writings in which he registered objections to landmark Supreme Court opinions that expanded the rights and liberties of Americans.

Bork’s criticisms, for example, of Brown v. Board of Education, the 1954 decision in which the Court struck down segregation in public schools, and his rejection of a constitutional right to privacy, as set forth in the 1965 case of Griswold v. Connecticut, provided his critics with more than sufficient ammunition to defeat his nomination to the Court. Bork, himself, later admitted that his long list of controversial writings meant that, unlike judicial nominees since, he could not avoid questions about his judicial and constitutional philosophy.

Judge Bork’s defeat was not entirely attributable to his conservative values. Anthony Kennedy, nominated to the Supreme Court vacancy after the rejection of Bork, was approved unanimously, 97-0. Kennedy was a well-known conservative, but did not have Bork’s long record of scholarly writings, which could be picked apart by the Senate.

The Senate’s constitutional duty to appraise the qualifications of Supreme Court nominees was an invaluable addition to the appointment power. While its judgment is always subject to criticism, as is the president’s in nominating men and women to the Court, history will record that the advice and consent clause has served the nation well.