Whatever happened to true 'advice and consent' in Supreme Court confirmation hearings?
(Editor’s Note: This piece first appeared in the Washington Examiner on October 15 2020.)
The confirmation process in today's Senate is a dull affair. With few exceptions, Republicans and Democrats alike do not see it as an opportunity to offer meaningful advice and consent. Senators from both political parties instead see it as an opportunity to rationalize a decision they have already made to support a particular nominee. The result is that a president's partisan allies in the Senate back his nominees unquestioningly while his opponents look for reasons to oppose them.
This dynamic is evident in the Senate's present consideration of Amy Coney Barrett to serve on the Supreme Court. The Senate Judiciary Committee completed its review of Barrett's nomination after two anti-climactic days of questioning. While the committee will not vote on whether to advance Barrett to the full Senate until next week according to its rules, the outcome of that vote is not in doubt among senators. Even before the hearings began, the top Republican on the committee, Sen. Lindsey Graham of South Carolina, asserted that senators will support or oppose Barrett based on their partisan affiliation. And Democrats are predictably condemning the process as a “sham” because of Barrett’s skill at dodging their loaded questions.
Yet Barrett’s evasiveness is not new. Confirmation hearings for Supreme Court nominees have long been “bloodless affairs." Candidates nominated by Democratic and Republican presidents have been especially circumspect in answering senators’ questions ever since Robert Bork’s unguarded testimony led the Senate to reject his nomination in 1987. Consequently, today’s Senate performs its constitutional role to help select Supreme Court nominees by following a process that, ironically, renders its involvement inconsequential.
Senators' reflexive deference or opposition to a president's nominee are two sides of the same coin. This realization suggests that confirming Barrett will not, in itself, save (or doom) the Constitution. The dysfunction underpinning our present political dysfunction is much bigger than whether the Senate confirms Barrett (or any other particular nominee in the future). This is because senators' active participation in the confirmation process is essential to preserving the Constitution's separation of powers and the judiciary's independence.
James Madison observed in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Constitution, in support of which Madison wrote, is designed to prevent the government from becoming tyrannical. Concerns about tyranny animated nearly all of the debates Madison and his fellow delegates to the Federal Convention of 1787 had over the structure, role, and powers of the new national government.
The delegates solved the problem of tyrannical government by molding the Constitution's structure on the doctrine of separation of powers. The Constitution established three distinct branches of government, each of which corresponded to a different function of government. Madison described the novel arrangement in Federalist 49 as "several departments being perfectly co-ordinate by the terms of their common commission," as stipulated in the Constitution.
The separation-of-powers doctrine requires that the legislative, executive, and judicial branches of government be separate and independent. Madison writes in Federalist 51 that “each department should have a will of its own,” and that each branch “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.”
Madison’s fellow delegates shared his belief that there could be no freedom under the Constitution “if the power of judging be not separated from the legislative and executive powers.” That is why there are exceptions to the principle of popular selection regarding judicial appointments.
Madison believed different considerations should govern judicial appointments for two reasons. First, the rationale underpinning the Constitution's separation of powers doctrine envisions the judiciary to be a step removed from the ups and downs of day-to-day politicking. Selecting judges by popular vote would eliminate that step, thereby throwing the federal courts into the political fray with likely consequences that would be inconsistent with the Constitution's spirit and letter.
Second, Madison believed that the role of judging required those who judge to possess "peculiar qualifications." And he expected that those qualifications would not be best secured by popular election.
The Constitution’s appointments clause preserves judicial independence and the federal bench's apolitical nature while simultaneously promoting the requisite qualifications in those nominated by the president and confirmed by the Senate. It does so by avoiding strict executive or legislative control over who is appointed to serve on the federal bench. Viewed from this perspective, the Constitution's separation-of-powers doctrine circumscribes the president's decision rights in the confirmation process by giving the Senate a co-equal role to secure qualified nominees without jeopardizing the independence of the judiciary.
Madison prescribed ambition and institutional self-interest as a strong defense against a tyrannical government in Federalist 51. He argued that the Constitution’s institutional architecture would work in tandem with the diverse interests inherent in 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 Madison did not anticipate how partisanship drives senators to support (or oppose) a president's nominations reflectively. The current environment would be equally unfamiliar to Alexander Hamilton. He predicted in Federalist 76 that it would be “improbable” for a president to successfully persuade senators to confirm a nominee based on considerations other than merit.
When presidents and party leaders can quickly and consistently line up their partisan colleagues in support of or opposition to Supreme Court nominees, something other than merit is clearly influencing their senators' decisions. To the extent that it prevents the Senate from performing its role to provide advice and consent under the Constitution, the republic's institutional architecture no longer works how it was designed.
Madison’s institutional ambition no longer motivates the Senate to resist encroachments by the other government branches into its sphere of responsibility. While the Supreme Court's make-up is vital to preserving the Republic, it pales in comparison to the separation-of-powers doctrine on which the entire system depends.