Judicial Confirmation and the Constitution
The issue: What role should the United States Senate play in considering Presidential nominees to be federal judges, especially justices of the the Supreme Court?


The Constitution (Article II, Section 2) states that the President shall seek the "advice" and obtain the "consent" of the Senate before his nominations to the federal bench (and other "officers of the United States," including Cabinet officers) assume their posts.  (There is an exception for temporary appointments when the Senate is in recess.)   While it is assumed that the President will try to nominate judges who hold a judicial philosophy that he shares, there is much argument over whether the Senate is equally free to take philosophy and ideology into account in its decision whether to confirm the nominees. 

The Senate rejected 27 (20%) of the 149 nominees to the Supreme Court made between the nation's founding and 2005.  The reasons for the rejections vary, and include incompetence, inexperience, and impropriety.  Most of the rejections, however, reflect in part, or even primarily, a difference between the President and the Senate over whether the nominated justice represents the right ideological choice. 

The first Supreme Court nominee to be rejected by the Senate was John Rutledge, nominated by President George Washington in 1795, just eight years after the Constitution's drafting.  Although some senators suggested they voted against Rutledge out of concern he was losing his sanity, the main reason for opposition (the nomination failed on a 10 to 14 vote) to Rutledge was the nominee's recently-expressed opposition to the Jay Treaty with Great Britain, a treaty popular in the Federalist-controlled Senate.  The ideology-based Rutledge rejection, so soon after the Constitution's adoption, is strong evidence that the Senate's examination of a nominee's qualifications can be broad enough to encompass his political views. 

While senators may vote against a nominee for many reasons, it is clear that several nominees since Rutledge have failed for political reasons more than out of concerns of incompetence or impropriety.  Four nominees of President John Tyler, for example, failed largely because their belief in states' rights ran counter to those of the Whig-controlled Senate.  A late-term Buchanan nominee failed in part because he had opposed the abolition of slavery.  A Grant nominee went down to defeat because he had opposed the recent efforts to impeach President Andrew Johnson.  John Parker, a nominee of Herbert Hoover, lost his Senate vote, 39 to41, out of concerns that he was insensitive to labor and African-Americans. 

In the modern era, the Senate rejection of a Supreme Court nominee that is most clearly based on concerns with the nominee's politics or judicial philosophy was the 1987 defeat of Ronald Reagan nominee Robert Bork.  In his confirmation hearings, Bork made clear that his originalist philosophy persuaded him that the Constitution contained no general right of privacy (and thus cases such as Griswold v Connecticut, overturning a state ban on the sale and possession of contraceptives, were--in Bork's opinion--wrongly decided) and that the Equal Protection Clause offered no  special protection for discrimination based on gender.  Despite the fact that Republicans controlled the Senate, enough moderate Republicans joined with most Democrats to defeat the Bork nomination, 48 to 52. 

The Process
Nominations of Supreme Court justices and courts of appeal judges are now driven by staff working in the White House.  (Nominations of federal district judges, on the other hand, are more likely to start with a member of Congress serving the district where the vacancy occurred, especially if the congressperson belongs to the President's party.)  There are no objective criteria for whom a President might nominate; nothing in the Constitution even requires that a nominee have any legal training.   The staff evaluates a candidate based on prior opinions (if the nominee has judicial experience), writings and speeches, and background to determine ideological compatibility with the President's goals, as well as the likelihood that the candidate could be confirmed by the Senate.

Judicial nominations are forwarded to the Senate Judiciary Committee, which conducts its own review (using its staff and those of its members) of the merits of the nominee.  Hearings are held in which the nominee, as well as other persons knowledgeable about the nominee's qualifications, offer statements and answer questions posed by Committee members.  After the hearing, the Judiciary Committee votes on whether to recommend confirmation of the nominee by the full Senate.  A nominee who fails to win a majority of Committee votes usually sees his prospects die, unless the Committee chooses to forward the nomination to the full Senate without recommendation. The full Senate, once a nomination is sent to it, will debate the merits of the nominee and schedule a final vote on confirmation.  On rare occasions, as happened when charges of sexual harrassment surfaced at the last minute against Clarence Thomas, a nomination might be sent back to the Judiciary Committee for further hearings. A simple majority is required for confirmation.  The average time in recent decades between a presidential nomination of a Supreme Court justice and a final vote by the Senate has been a bit over two months.

Senate Confirms Elena Kagan

In August, 2010, The Senate confirmed the nomination of  Elena Kagan, 50, to be the newest Supreme Court justice, replacing Justice John Paul Stevens.  The vote was 63 to 37, with five Republicans joining 58 Democrats in supporting confirmation.  Opponents of Kagan during the confirmation process focused on her opposition as Dean of the Harvard Law School to the military's discrimination against gay soldiers, as well as her lack of judicial experience.

Relevant Constitutional Provisions

Article II, Section 2, Clause 2:  [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court, and all other Officers of the United States....

Article III, Section 1:  The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior....

Robert Bork

Clarence Thomas

Two controversial Supreme Court nominees,
one defeated and one confirmed

Washington and Lee Law Review,  Summer 2001 
by Yates, Jeff,  Gillespie, William
Excerpt from the above article:

In examining the Convention's record, it becomes ostensible that the Constitutional Framers, who had for months retained a proposal granting the Senate sole appointment power, had not intended to eviscerate the Senate's vital role in the selection process. Professor Charles Black reaches a similar interpretation, asserting:

This last vote must have meant that those who wanted appointment by the Senate alone - and in some cases by the whole Congress - were satisfied that a compromise had been reached, and did not think the legislative part in the process had been reduced to a minimum. The whole process, to me, suggests the very reverse of the idea that the Senate is to have a confined role.

Black futher argues that the Framers contemplated the Senate's active questioning of a nominee's policy values....

The proposition that the Senate may actively investigate a nominee's ideological values and vote against a nominee for political reasons is supported by the Senate's application of the "advice and consent" phraseology during the eighteenth and nineteenth centuries. During the years 1787 through 1900, the Senate refused to confirm twenty-two Supreme Court nominees, often for political reasons.  As detailed below, the Senate's early practices evince a historical tradition of the Senate as an active and political participant in the confirmation process....

                                  Confirmation Trivia
1.  What Supreme Court nominee was defeated by the most lopsided Senate vote?
A.  Alexander Wolcott, a nominee of James Madison who lacked significant legal training.
2.  What Supreme Court nominee was the first to testify in confirmation hearings?
A.  Harlan Fiske Stone, a confirmed nominee of Calvin Coolidge.
3.  What President had the most Supreme Court nominees rejected by the Senate?
A.  John Tyler (5 rejections, after Tyler angered the Whig-contraolled Senate with his strong support for states' rights.)
4.  What Supreme Court nominee was rejected by the narrowest Senate vote?
A. Jeremish Black, a nominee of James Buchanan made just a month before Abraham Lincoln would succeed him as president, who was rejected 26 to 25 , largely because he was a northerner opposed to abolition.
5.  Who was the first nominee to face a Senate filibuster?
A.  Abe Fortas, Lyndon Johnson's nominee to be Chief Justice, was filibustered by a Republican-controlled Senate in 1968, as an election neared that ultimately would be won by Richard Nixon, who would then fill the vacancy with Warren Burger.

What is "the nuclear option"?
Also called "the constitutional option," the nuclear option is a decision, presumably to be made by the Majority Leader of the Senate (Senator Frist), to call for a ruling by the Senate's presiding officer, the Vice President, that an ongoing filibuster against a judicial nominee is unconstitutional.  The motion to call for a ruling by the presiding officer cannot itself, under the Senate's rules, be filibustered, and the presiding officer's decision could be upheld by a simple majority vote of the Senate.  Such a ruling would not change Senate Rule XXII, which permits the use of filibusters, but would effectively end the filibuster against the nominee.

There is little in the Constitution to suggest that filibusters are unconstitutional when used against judicial nominees, but constitutional in all other situations.  More plausibly, filibusters are either constitutional (as has previously been assumed, since they are not expressly barred by the Constitution, which delegates authority to the Senate to establish its own rules) or unconsitutional (filibusters are a creature unknown to the Constitution and probably not contemplated by the framers)  in all circumstances.  This does not mean, however, that as a matter of raw power the nuclear option cannot be used.  Any attempt to argue to a court that the nuclear option is itself unconstitutional is likely to be determined to be "a political question" unsuitable for judicial determination.

The nuclear option gets its name because it is seen as a drastic step which, in the minds of many Senate watchers, threatens to "blow up" whatever civility remains in that body.

1.  Is it unconstiutional for a President not to seek any advice from Senators in advance of making nominations?  If not, what does the word "advice" in Article II, Section 2 mean?
2.  Does the Constitution, in your opinion, presume that senators are free to vote against competent nominees for purely political reasons? 
3.  Regardless of whether they have the power to do so, should senators be free to weigh ideological concerns in their decision whether to support a nominee, to the same extent as a president is free to weigh those concerns in his or decision to make the nomination?

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