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Constitutional Model for Questioning Judicial Nominees

It seems that a group of Senators (including Mikulski, Boxer and Clinton, among others) are not content to ask their own questions of Judge John Roberts, but have also seen fit to publish a website whereby members of the public may pose their own questions to the nominee.

Politics aside, this is truly quite remarkable. Never before in the history of Supreme Court nominations has a group of Senators so openly solicited input from the public. While it's hard to imagine that this group, in combination with other Democratic members of the Senate Judiciary Committee (Sens. Schumer, Kennedy and Leahy come to mind) will be at a loss for words once the TV cameras are on, do these Senators really need help from the public in finding a question for the nominee?

Obviously, this is a publicity stunt, but as stunts go, is this one very helpful? Does it have any Constitutional basis?

While the Constitution itself has little to say on the rationale behind the Senate's prerogative to "advise and consent", one of the Constitution's architects, Alexander Hamilton, provided a great deal of insight through the Federalist Papers.

In Federalist 76, Hamilton described the Senate's "advise and consent" prerogative as "a powerful, though, in general, a silent operation".

Curiously, Senate Democrats have been anything but silent. Taking a brief respite from their busy schedule of cable television interviews, the Gang of Seven who published the "Ask John Roberts" website have suggested that they are seeking the pulse of America by asking for public input:

Americans are curious about where he stands on the issues that will impact their lives like the environment, their right to privacy, corporate and business practices, the education of their children, the health care of their families and their civil rights.

As Senators, we believe it shouldn't only be Senators that get to ask the questions this time around. We want the American people to have a voice. We want to know what you care about the most.

As Senators, this is a strange thing to believe.

Hamilton clearly believed that the Senate's "advise and consent" role should be one of rectitude, not a poll. Hamilton warned in Federalist 76 against the temptation Senators might feel to impose on the Presidency their own preferences for Presidential appointees:

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, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, 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. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

Hamilton's words are especially prescient under the present circumstances.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.