Considering Judicial Nominations

Recently, I’ve written a few posts (here and here) presenting the idea that the current fight the left is preparing to mount over the supreme Court (and other) judicial nominees is ill-considered, perhaps ill-mannered, and just plain wrong. I based these arguments on my perusal of Hamilton’s little essay in the Federalist Papers, specifically #76. What I hoped to accomplished was to convince some people on the left that prior to engaging in their partisan squabbles, they should consider and rebut the arguments made by Hamilton, for they are good arguments, well reasoned, and in fact probably a correct assessment of the situation. In fact, by ignoring these arguments, the left (and right) have over the last few decades convincingly demonstrated the correctness of his arguments. For the circus-like squabbles we see erupting on the Senate, filibuster this, Bork that and so on, are exactly what Hamilton cautions us against. The remainder of this essay will consist of excerpts from Hamilton’s essay and commentary on how that might apply to the current situation at hand.

On this topic, the Constitution itself reads:

THE President is “to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session.”

Hamilton points out that the test of good government is its aptitude and ability to produce a good administration. Part of this administration of course includes ambassadors, consuls, ministers, and judges. So it behooves us to consider how these men might be selected. Hamilton writes:

It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly.

The convention wisely discarded the Athenian method of having all citizens vote and deliberate on these matters. It is worth noting that the current Senate’s detailed involvement in the nomination process essentially boils down to a de-facto assumption of the nomination process from the “single man with concurrence” to a select assembly (namely the Senate). So of particular interest to us in the following will be arguments as to why a single man (with concurrence) is better than a select assembly and exactly what is the role taken by that assembly.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. 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, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

What does this mean for us? Well, that means that as Mr Bush nominates people, he is solely responsible. But as the judiciary committee (or full Senate) goes to work, no one member takes on himself responsibility for their actions. Mathematically speaking, there is no way one man can have more personal attachments to gratify than any body of men. It seems obvious that the only reason that the left is pushing for moving more of the nomination process to the Senate is because they have some representation there, as opposed in the person of Mr Bush. However, this comes disadvantage of the last sentence, that is the 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. So those arguing that the require such representation in the process, must also argue why the cost, these animosities and antipathies or what I term the circus is worth the benefit. The supposed benefit is of course a better administration, i.e., better judges.

Hamilton hopes that the power of nomination, residing in the Executive, will cause the Senate to take pause in considering the option of refusal. He writes:

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

Well, after Mr Bork, we see that the “kind of stigma” is not a thing which the committee any longer fears to cast on its fellow citizens.

Why then do we even have the Senate advising? What is the idea behind their role?

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

That makes it clear. The Senatorial role is to insure that a spirit of favoritism is not what motivates the Executive. I would hold that questions veering from this purpose, that of deciding whether the candidate was selected by motives which are irregular should be the only line of questioning that the committee might take unless it has disposed previously of the arguments that nomination by a group will not produce the circus. Seeing as we have both questions veering from this path and the circus, it behooves us citizens to exhort the fumbling knuckleheads in the Senate to return to the course set for them by our founders, for evidently (and quite obviously) those founders were wiser men than they.

It has been argued that this Pandora’s Box, of nomination practice, once changed cannot be changed back. However, the Swift Boats Vets and Powerline vs CBS/Rather has shown that with rise of a new media that is not beholden to the Establishment has power to change things. Bloggers in fact could change the nomination process if they chose too. But the cry has to be taken up by other than just myself. Echoes of this call to retreat from the brink of nominative stupidity and maybe it will happen. Shrug, or worse participate, and the circus will prevail.

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