Federalist Papers #76
Timeless words on senate's advice & consent
“To what purpose then require the cooperation of the Senate?
I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation…”
president's power - Supreme court nominations
A Brief History of President's Powers to Appoint Supreme Court Judges
U.S. Constitution Article II, Section 2, reads in part:
“He [President] shall have Power, and he shall nominate and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .”
For over two hundred years the President established a precedent of consulting with the Senate utilizing the role of senatorial courtesy. This process obtained the earnest participation of the Senators.
The Senate used a simple process of turning the nominees over to the Judiciary Committee for review, and if there were no substantial objections based on the merits of the nominee, the Senate would confirm.
The separation of powers was purposefully and specifically outlined in the U.S. Constitution, and the Federalist papers clearly explains the intent of our Forefathers for designating the power only into the President’s hands.
Alexander Hamilton wrote about the President’s Appointment Power:
“. . . I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment” (Federalist Papers, #76).
United States citizens rely on judges who uphold the Law of the Land - U.S. Constitution equally.
Current United States supreme court justices 2023
Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan.
Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson.
Credit: Fred
advice and consent of the senate - Abuse of Power?
Merit, not ideology. Advice and consent is not a vague clause to be manipulated for partisan fighting. It is a literal term used throughout history with only one meaning. It means now the same thing it meant when the Constitution was drafted.
Advice and consent is the sober and earnest consideration of the merits of the person or situation, and the explicit approval if there are no specific issues of merit. Merit, not ideology.
Should there be a merit issue, then a respectful debate of those issues should occur.
In the recent decades, the Supreme Court nominations have been reduced to a media circus and political-party event for the Senate’s Party power advancements.
Judicial hearings which were held infrequently prior to the
1950’s have become lengthy and exhausting interrogations.
By the late twentieth-century the Senate deemed it acceptable to impose their political agendas at the expense of respect and deference to the nominees and the United States Constitution. This is against the Constitution - the Law of the Land.
The CRS Judicial Nomination Statistics reports, “The great majority of each President’s district and circuit court nominations have been confirmed, except for the circuit court nominations of Presidents William J. Clinton and George W. Bush…The average number of days elapsing between nomination date and confirmation has been higher for most Congresses in the post-1990 period than for prior Congresses.”[1]
This dramatic decrease in timely approvals of judicial nominees isn’t due to unqualified nominees, but solely to the abuse of power by the Senate.
The Senate confirmed 89% of Circuit Court nominees for President Reagan, compared to 59% for George Bush in 2004.[2]
[1]Rutkis
[2] Kyl, John. Chairman. The Daschle Edict-A Judicial Obstruction Update.
Republican Policy Committee. Washington D.C.: published 18, May 2004
21st Century Senate Supreme Court Circus
Our founders understood the propensity of man
The Senate’s motive to control the President's Judicial appointments is obvious - they want to choose the ideology of who sits in the highest jurist seats.
Our Forefathers did not think it would be wise for “an assembly of men” to make the appointments. Our forefathers were not naïve when writing the Constitution. They were men who not only studied the law, but men who studied philosophy and history and knew all too well the tyrannical nature of man.
Alexander Hamilton explained:
"There is nothing so apt to agitate the passions of mankind as personal considerations…Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes . . .
intrinsic merit of the candidate will be too often out of sight . . .
The coalition will commonly turn upon some interested equivalent:
‘Give us the man we wish for this office, and you shall have the one you wish for that.’
This will be the usual condition of the bargain."[1]
“To what purpose then require the cooperation of the Senate?
I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation…”[1]
[1] Hamilton Alexander, Madison James and Jay, John. The Federalist. ed. Benjamin Fletcher Wright. United States: 1961, #76 p. 480-483.
expanded role of the senate is abuse of power
Political Activism is Abuse of Power
There is an important role for the Senate to play in the confirmation process, but their role is limited to only peripheral involvement unless there is a true issue with the merit of the appointee.
The dramatic increase in the length of time it takes for the Senate to interrogate, or as they refer to it, “confirm” judges corroborates the intent to obstruct on the part of the Senate.
The demands for extraneous information from the President and direct interrogation of qualified nominees expose the obvious attempts by the Senate to circumvent the President and control the appointments.
Specialist in American National Government, Denis Rukus observed, “A general trend among Senate committees in the 1970s and 1980s was to intensify their scrutiny of presidential nominations and to augment their investigative staffs for this purpose…close scrutiny became the norm, even if a nominee were highly distinguished and untouched by controversy”[1]
Under a guise of uncovering legitimate issues about the nominees, the Senate has established inquisition-style hearings meant to gain their prerogative.
This blatant abuse of power should not be ignored or accepted as business as usual.
The ideology divide between parties is used as sufficient reason for the Senate to abuse their power and obstruct the President’s appointments.
In 2005, Senate leaders demonstrated their superciliousness during the Supreme Court nomination process. In the name of advice and consent, the Senate requested documents and information regarding the Supreme Court Chief Justice nominee John Roberts from the President. Although thousands of documents had been turned over, some of the documents thought extraneous by the President were not.
Senator Patrick Leahy, then the ranking member of the Judiciary Committee, addressed the committee members on September 22, 2005, where he encouraged the Senators to vote down the qualified judicial nominee. Yet, in that same address, Leahy also commented about nominee Roberts saying, “Judge Roberts is a man of integrity.”[2]
Although Leahy had found Judge Robert’s to be of merit, he kept true to the partisan control at any cost mentality. In regard to not obtaining their requested documents, Leahy said to the Senators, “Accordingly, I would understand if a Senator were to vote against the President’s nomination of Judge Roberts on this basis alone.”[3]
To teach the President a lesson for not abdicating to the Senate, they blatantly abused their power and obstructed the President’s choice for a highly qualified judicial appointment.
This is but one example of the Senate’s behavior as this behavior goes across party lines. Through their sophomoric tit for tat antics the Senate has reduced the respect for the Constitution and the effectiveness of the Courts, as well as the respect for the Senate as a serious body of government.
Maintaining the sanctity of our judicial system is vital to maintaining the strength of our country as a land of laws which are respected and followed by its citizens. Ultimately the out-of-control partisan fighting will break down the respect for, and adherence to American laws.
Political scholars predict there are at least three ways in which this battle is affecting America. First, the performance of the federal courts might suffer; second, the legitimacy of the court as an institution might be harmed. And third, partisan battle might be harmful both for the Senate institutionally and for its members.[4]
The political activism of the Senate has created a record number of vacancies in the appellate courts, and is represented by the low percentage numbers of Circuit court nominee confirmations. A perfect 100 percent of appellate court nominees were confirmed in the 1950’s, but less than 40 percent were confirmed in the 107th Congress (2001-2003) [5]
The Senate is infamous for its party battles using unanimous consent, the filibuster and cloture as methods to wrangle power from one another. The obstruction tactic of the filibuster is being used against the judicial nominees to hold up the nomination process and as a coercive tactic to gain control.
In 2019, Justice Brett Cavanaugh was accused of a rape alleged to have happened decades before, and although the accuser had never filed a claim and was unable to cite where or when the alleged event happened, a mob of Senators ignored due process laws (and common decency) and fueled the fire to destroy the reputation of a nominee - simply because they didn’t like his personal ideology and had the power to hold an inquisition.
This behavior defines Abuse of Power.
Our young country is only as strong as its Constitutional bond.
The United States Constitution is being deconstructed by its own representatives because they deem their selves superior to the spirit and words of the ruling American document.
The President has the appointment power. The Senate does not hold appointment power under our Constitution, and they should be held accountable for their breach of duty and abuse of power.
[1] Rutkus, Denis Steven. Specialist in American National Government.
Supreme Court Appointment Process: Roles of the President,
Judiciary Committee, and Senate. CRS Report for Congress,
Updated 6 July 2005. http://Judiciary.house.gov/supreme
[2]Ibid.
[3]Leahy
[4]Binder , Maltzman, Dodd & Oppenheimer
[5] Binder, Sarah and Maltzman, Forrest. Dodd, C. Lawrence and
Oppenheimer, eds. Congress Reconsidered. Washington D.C: CQ Press, 2005.
2020 supreme court
The Robert's Court
The U.S. Supreme Court justices as composed October 27, 2020 to present.
Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor.
Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett.
Credit: Fred Schilling, Collection of the Supreme Court of the United States
Justice Ruth Bader Ginsburg
RBG (1933 - 2020)
President Clinton nominated Ms. Ginsberg as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993. Justice Ginsberg served on the Court until her death, September 18, 2020.
Seated, from left: Justices Stephen G. Breyer, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito, Jr.; standing, from left: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh
Photo- Fred Schilling (1970- ) for the Supreme Court