The Course of the Confirmation Process Isn’t Supposed to Run Smoothly

(Editor's Note: This piece first appeared in Law and Liberty on September 6, 2017.)

The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.

But that represents a flawed understanding of the Constitution’s Appointments Clause and the separation-of-powers doctrine on which it is based. Senatorial deference, far from facilitating the proper working of the confirmation process, risks undermining the judiciary’s independence as a coequal branch of government by making the Senate less likely to check the President in determining the composition of the federal bench.

What is healthy, and constitutionally legitimate, is competition between the Senate and the President in the confirmation process. Competition makes it more likely that the judges and justices who are ultimately confirmed will discharge their duties in a manner consistent with the Framers’ designs.

The Constitution established three distinct branches, each of which corresponded to an inherent function of government. In Federalist 49, James Madison described this arrangement as “several departments being perfectly co-ordinate by the terms of their common commission” as stipulated in the “constitutional charter.”

The doctrine of separation of powers requires that the three branches be separate and independent of each other. Indeed, separation was merely perfunctory without independence. Given the imperative of separation, Madison argues in Federalist 51 that each department “should have as little agency as possible in the appointment of the members of the others.” The implication of Madison’s reasoning is “that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people.”

Yet there are exceptions to this principle, particularly regarding judicial appointments. Madison believed there were two reasons judicial appointments should be exempted from the normal way, that is, elections. First, the judiciary was intended to be an apolitical branch of the national government and selecting judges through popular vote would make it an inherently political branch. Second, the nature of the judiciary’s role in the new government required “peculiar qualifications,” which Madison believed could not be secured by popular election.

Article II, Section 2’s Appointments Clause preserves judicial independence and the apolitical nature of the judiciary while simultaneously creating a joint presidential-senatorial role in the confirmation process, so as to ensure that those nominated and confirmed have the requisite qualifications. It does this by avoiding strict control by either the executive or the legislative branch over who is confirmed to serve on the federal bench.

When viewed from this perspective, it becomes clearer the extent to which the President would wield disproportionate influence over the composition of the judiciary if the Senate’s posture were one of deference. In such a scenario, judicial independence would be diminished if senators believed that the institution’s internal rules of procedure should be structured so as to facilitate the confirmation of the executive’s nominees, or otherwise guarantee them up-or-down confirmation votes on the Senate floor.

Admittedly, senatorial deference to the President in the confirmation process may not always lead to this undesired outcome. But concern is warranted in the current political environment. The key consideration in assessing the impact of senatorial deference: What is the primary motivation animating the party that holds the majority in the Senate? In the current era of polarized politics and homogenous parties (at least when it comes to judicial nominations), Senate majorities are not likely to effectively check a President of their own party. The partisan spirit that characterizes so much of congressional deliberations today also facilitates increased deference to the President when the same political party controls both the presidency and the Senate.

The Framers didn’t fail to anticipate the threat that partisanship could pose to the new governing arrangements. They simply thought the new system would have a natural defense against this threat in the difficulties of coordinated action in the government, and, secondly, in the Senate’s own institutional ambition.

For example, Alexander Hamilton argued in Federalist 76 that a President’s persuading enough senators to confirm a nominee based on considerations other than merit would be “improbable.” In Federalist 51, Madison prescribed ambition and institutional self-interest as vital protections against such a scenario. He argued that the institutional architecture erected by the Constitution would work in tandem with the extended republic of the United States to ensure that “a coalition of a majority of the whole society could seldom take place on any other principle than those of justice and the general good.”

Yet unbeknownst to Madison and Hamilton, it is not inconceivable for coalitions to be based on partisan considerations today, rather than on the nominee’s merit or larger questions of justice and the general good. This is because neither man anticipated the level of partisan polarization seen in contemporary American politics.

The hyper-partisanship we see today may inappropriately predispose senators to support a President’s nominees, regardless of merit, if they are from the same political party. When this occurs, the constitutional system no longer works in the manner that the Framers intended. In such an environment, a President or congressional party leaders may be able to persuade enough senators to support a nomination for largely partisan reasons.

John Adams presciently articulated the dangers of partisanship for the confirmation process in a letter he wrote to Roger Sherman shortly after the Constitution was ratified. Said Adams:

We shall very soon have parties formed; a court and country party, and these parties will have names given them. One party in the [H]ouse of [R]epresentatives will support the president and his measures and ministers; the other will oppose them. A similar party will be in the Senate; these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers. Suppose such parties formed in the Senate, and then consider what factious divisions we shall have there upon every nomination.

To the extent that obstruction and delay make it harder for a majority party to operate in the manner described by Adams, it serves to reinforce, however imperfectly, the Framers’ view of the Senate’s proper role in the confirmation process. The doctrine of separation of powers should thus be interpreted as necessarily circumscribing the President’s decision-rights by granting the Senate a coequal role in confirming judges and justices to serve on the federal bench. This is necessary to secure qualified nominees without jeopardizing the independence of the judiciary.