Thursday, September 22, 2005

Margins matter, too.

From Mike's earlier post: The role of the Senate is to ensure that judicial nominees are not cronies who are unqualified, it is not to ensure that the nominees match their idea of correct jurisprudence.

This seems to be a widely held view, but it is one without historical or textual basis. The phrase "advice and consent" does not, in and of itself, require or restrict the Senate from considering anything in particular when voting on a judicial nominee. Disagreement about the exact role of the Senate in providing advice and giving consent began with Washington, so it would be difficult to argue that the framers -- that group of very individual men whose intent is often spoken of as if they shared a collective brain -- had a clear and definite conception of what exactly the phrase entailed. The first nominee to the Supreme Court to be rejected was not because he lacked experience as a judge or because he was a cronie of the President, but because of a political speech he gave.

That elections matter is a truism, and that the President picks and nominates judges is ensured by the constitution. Neither of those things confers on the President the right to have his nominees automatically confirmed to the bench. Some of the founders favored vesting the power to appoint in the presidency. They lost out to those (Federalists, incidentally) who favored having the Senate provide a check on presidential power.

Just as the Senate has the power to opt not to give its consent to a nominee who will not testify before it, it has the power to opt not to consent to a nominee who evades its questions. The extraordinary circumstances that would cause the necessary concensus required for that option seem unlikely to occur, but the possibility is illustrative of the latitude the Senate posesses. A Senator could vote against a nominee because he didn't like his socks, and he wouldn't violate the constitution. Those Senators are elected, too. The fact that a man won the presidency and thus gets to choose nominees to the Supreme Court doesn't negate the fact that Senators who won elections get to decide whether or not to confirm those nominees -- whether the decision is based on technical qualifications, policy, or wardrobe. The last election was close. Is it any wonder the confirmation process is intense?