Thursday, September 22, 2005

The Historical Basis for Limiting No Votes on Nominations

Ah, Rob, but there is a historical basis for the argument. First, more recently, there are the overwhelming votes for Breyer and Ginsburg, which indicates Republicans (at least), thought it inappropriate to vote against candidates based on politics. The New York Times (link not available due to TimesSelect) got it in 1993:

While the politicians repeatedly pressed for bottom lines on particular issues like the death penalty and gay rights, Ms. Ginsburg asked to be judged as a judge, not as an advocate. Senators who could not be educated yielded anyway -- to the reality that Judge Ginsburg enjoys overwhelming Senate support.

But we can go back even further, to the Founding Fathers...

From Federalist 66:

There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

From Federalist 76:

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.

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.