Ironically, the Constitution is Lost in Supreme Court Confirmation Hearings

A recent Boston Globe article analyzed the impact of Senator Scott Brown’s vote on the candidacy of Solicitor General Elena Kagan to the Supreme Court of the United States. Quotes abound from each side of the political spectrum, stating that Brown’s vote will be a unique key in determining whether he is a “true” Republican or just a Massachusetts liberal in GOP clothing. Similarly, the media has bandied about its usual speculation whether certain GOP Senators will “follow party lines” and vote against the nomination or will “cross the isle to support Elena Kagan,” possibly to their own political detriment.

As far as I can tell, few Senators or media outlets mention the fact that these proceedings, as a matter of constitutional law, do not constitute an opportunity for Senators to get a pure “vote” on whether Solicitor General Kagan is the right person for the job. To the contrary, the Senate has a substantially subordinated role in this process, and equating a Senator’s vote with a pure statement of his or her political ideology inflates both the Senate’s constitutional authority in confirming justices and the importance of the vote in assessing a Senator’s conservative or liberal bona fides. Ironically, by aggrandizing the role of the Senate in this process, by overstating its “say” in this matter by implicitly equating the Senate with the White House, we blatantly lose sight of the Constitution. Let me explain….

Article II, Section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” (Emphasis added). There are several crucial aspects of this language. First, this provision is located in the part of the Constitution detailing the powers of the President. Thus, the appointment of Supreme Court justices is a power committed to the President, subject to the advice and consent of the Senate. Second, the appointment occurs with the advice and consent of the Senate, not with its “approval” (a term used in Article I, Section 7 of the Constitution, giving the President power to sign or veto legislation if he “approve[s]” of it). Thus, the Senate’s power here is not the same type of full review accorded by the term “approval,” but instead is limited to mere “advice and consent.” Third, this provision is a notable exception to bicameralism in that only the Senate, and not the full Congress, gives advice and consent. Thus, the Senate’s power here is far more limited than the Congress’s general power to legislate. Finally, a bare majority vote fulfills the Senate’s advice and consent duty. This contrasts with the treaty-making power, also enumerated in Section 2 of Article II, which requires a two-thirds vote of the Senate. Thus, the Senate’s limited role in confirmation is even more limited than its role in ratifying treaties.

From all of this, we can glean that the Senate’s role in the confirmation process is extremely limited. Yet, if one listens to the media, one gets the impression that Scott Brown and his colleagues are just as much the “deciders” (to use a term popular with the last administration) here as the White House. That’s just not so, and by inflating the Senate’s role, we add fuel to the fire of the increasingly partisan and far less substantive tenor of the confirmation process. Rather than focusing on whether the candidate is qualified for the position, the opposing party in the Senate simply cross-examines the nominee in search of a “gotcha” moment. Rather than discussing qualifications, the opposing party now demands empty statements of fealty towards judicial deference to Congress and pro forma vows of abhorrence for judicial activism.

Rather than recognizing the important balance of constitutional authority inherent in this process, opportunistic politicians have transformed confirmation into mere political muckraking evidenced by the increasingly close votes for candidates who were eminently qualified for the High Court. (Since the 1988 confirmation of Justice Kennedy, not a single nominee has won unanimous confirmation. Scalia, J.: 98-0; Kennedy, J.: 97-0; Souter, J.: 90-9; Thomas, J.: 52-48; Ginsburg, J.: 96-3; Breyer, J.: 87-9; Roberts, CJ.: 78-22; Alito, J.: 58-42; Sotomayor, J.: 68-31).

The media and the Senate should stop treating the confirmation process as a measure of a Senator’s ideological philosophy. Instead, we should recognize that a vote for an opposing party’s nominee is the same type of constitutional deference currently demanded of nominees during their grilling in the Senate. As Senator Orrin G. Hatch (R-UT), has stated: there “are myriad reasons why political ideology has not been — and is not — an appropriate measure of judicial qualifications. Fundamentally, the Senate’s responsibility to provide advice and consent does not include an ideological litmus test.”

That’s good advice on how to give good advice and consent.

Louis Schulze