November 4, 2016

November 4, 2016 | Commentary on

On Judicial Nominations, Senators Are Meant to Advise, Not Rubber-Stamp

With one seat vacant and several more likely to open up over the next four to eight years, the next president could shape the Supreme Court for a generation or more. But presidents aren’t the only ones who can shape the Court.

The Constitution assigns joint responsibility to the U.S. Senate. Article II, section 2 stipulates that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court.” The president nominates, but appointment is contingent on Senate approval of the nominee.

The Framers stipulated this power-sharing arrangement for a reason. Indeed, it is critical to the success of our political system.

Delegates to the Constitutional Convention of 1787 faced a daunting challenge: to create a government powerful enough to preserve order but not so powerful that it threatened individual liberty. Their solution was to divvy up governmental powers among three branches of government — a system of checks and balances designed to keep any one branch from gaining more power than another.

In Federalist 51, James Madison urged that, to keep the powers separate, each branch “should have as little agency as possible in the appointment of the members of the others.” But this presented a problem for the judicial branch, which was intended to be apolitical and therefore could not have its members appropriately selected by the states or the people.

The solution was to give federal judges life tenure and to make filling the bench a joint, presidential-senatorial responsibility. There was no desire to make the Senate’s role in the confirmation process subordinate and deferential to the president’s. To do so would give the chief executive disproportionate influence over the composition of the judiciary.

Every senator swears to “support and defend the Constitution.” This solemn oath obligates senators to ensure that those nominated to serve on the Supreme Court — or any lower federal court, for that matter — will adhere to a simple standard: to faithfully apply the text of the Constitution and federal statutes as they are written (not as the nominee might prefer they were written), and by interpreting that text in accordance with its original public meaning — i.e., how that text would have been understood by the public at the time it was passed — even if that produces an outcome distasteful to the nominee.

Unfortunately, some senators appear to believe that a president has the right to pick judges likely to decide cases according to a shared political philosophy rather than according to legal texts. “Elections have consequences,” they say, and so lawmakers must defer to the president’s wishes.

Such reasoning ignores the Framers’ understanding that senators, who are also elected, have a right to insist that the president appoint apolitical judges who are faithful to the words of the written Constitution, not political actors. 

In Federalist 78, Alexander Hamilton wrote that the federal judiciary would be “the least dangerous branch,” because judges would exercise “neither force nor will, but merely judgment.” But that’s not how “result-oriented” judges act. When they feel called to “do good,” they do not hesitate to ignore the law as written and follow their personal, political preferences instead — thereby forcing their will on the people. Such activism makes the judiciary not just another political actor but rather “the most dangerous branch” — because unlike officials from the other two branches, judges never confront the voters, and their erroneous constitutional interpretations either in the government’s favor or against it may not be easy to overturn.

All senators, regardless of party, should keep this in mind and independently and rigorously evaluate the fitness of federal judicial nominees, with a view to their fidelity to proper textual interpretation, which is the key to sound judging. Over time, such an approach might influence presidents to start nominating more individuals who are committed to the limited yet vital role of proper textual interpretation and fewer who are bent on effectively rewriting the Constitution and laws under the guise of “interpretation.”   

To preserve our cherished liberties and our constitutional system of government, both the executive and the legislative branches must engage in robust give and take about the kinds of men and women who ought to be confirmed to life-tenured positions in the judicial branch. And senators have a sworn obligation to reject nominees who, they believe, would fail to uphold the Constitution.

About the Author

John Malcolm Director, Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

James Wallner Group Vice President
Research

This piece first appeared in National Review