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Constitutional Model for Questioning Judicial Nominees IV

Jonathan stands firm, but I have to, also, because I believe his point is inconsistent with the history he wishes to rely upon.

It's trivially true that Senators have never used the Internet to solicit opinions or questioning of a Supreme Court nominee. My reaction is "so what"? Why is it any more or less objectionable than soliciting the opinion of Larry Tribe? But otherwise "unprecedented" or "inconsistent with the intent of the drafters of the Constitution"? Not so.

The idea that the populace didn't have a voice in Supreme Court nominations until now just simply isn't so. John J. Parker's nomination to the Supreme Court was rejected in 1930 precisely because of substantial opposition from the public for racist remarks he made when he ran for governor of North Carolina; similar reasons doomed James K. Polk's long-forgotten nomination of George W. Woodward, who was deemed potentially offensive to the Irish-American community and other immigrants. (Woodward had argued in 1837 that the Pennsylvania Constitution should bar "foreigners" from voting.) President Hoover nominated Benjamin Cardozo to replace Oliver Wendell Holmes in 1932 in part because of an outpouring of support by the legal community; Samuel F. Miller's and Edwin M. Stanton's 19th-century nominations were the result of a popular demand from the legislature. In 1968, President Nixon had a campaign promise that he would nominate a Southerner to the Court, a clear appeal to the public on which he eventually followed through.

The argument that "The Founders never imagined that Senators would suggest that the public 'have a voice' in judicial confirmations" only has so much relevance. The Founders didn't anticipate the Seventeenth Amendment either. And, for crying out loud, the Senate rejected George Washington's recess appointment of John Rutledge as Chief Justice in 1795 because of Rutledge's unpopular, and utterly irrelevant, position on the foreign policy question of the 1794 Jay Treaty. I don't think this particular Founders' view of Supreme Court nominations is something we wish to emulate today.

That said, Jonathan's reliance on the Federalist Papers doesn't help his position, either. The passage he cites from Federalist No. 76 needs to be reconciled with Hamilton's Federalist No. 77, which clearly anticipates the need for the legislature to consider the consequences of popular approval or disapproval:

And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.

Even it were true that such questioning was "unprecedented and inconsistent with the intent of the drafters of the Constitution," which, as demonstrated above, hardly seems to be the case, that's no argument against its wisdom or lack thereof. If we go solely by precedent, President Grant's nomination of George H. Williams was withdrawn after it became apparent he could not win confirmation—in part because Mrs. Williams had offended some Senate wives, and in part because Williams had purchased a carriage deemed too gaudy. Do we want the Senate to pass judgment on Mrs. Roberts' PT Cruiser?



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.