Advise and Consent

05/12/10

Let's start with a little historical background. The process for nominating Supreme Court justices was based on one first established in the Constitution of Massachusetts, written by John Adams. The delegates to the Constitutional Convention adopted it as a means of providing responsibility for the nomination to one person, the President, while enabling Congress to act as a check against tyranny. Gouverneur Morris, a delegate to the Convention credited with authoring large portions of the Constitution including the preamble, said ''As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.'' This method of hyphenating the authority to nominate and the authority to appoint with Congressional approval was defended by Alexander Hamilton in Federalist 76.


The Constitution does not contemplate pre-nomination limitations on the power of the executive to nominate whomever he chooses. Likewise, the Senate is not bound by any constitutional language to confirm or reject a nominee based on specific guidelines. The power to nominate and the power to confirm a nomination are both plenary powers. However there is some evidence that the Founding Fathers would have rejected the notion of judicial filibusters. The confirmation of a judicial nominee requires a simple majority, unlike the confirmation of treaties which requires a super majority. Judicial filibusters erase this distinction, one which was deliberately built in to the Constitution.

From George Washington's first nomination on, the Senate has used the same format for its confirmation resolutions: “Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire...''

There are ample reasons to believe that soon that phrase will end with “...Elena Kagan.'' Two senior Republicans on the Judiciary Committee, Senators Hatch and Graham, have made guarded statements in support of the nomination. Although withholding final judgment until the Senate has a chance to scrutinize her speeches and writings, the positive tone of their early comments gives hope that we may avoid another bruising partisan battle.