Oregon State Bar Bulletin — FEBRUARY/MARCH 2006

Advice and Dissent
The role of politics in U.S. Supreme Court appointments
By Jeff Bleich

In the political debates that often surround confirmations of Supreme Court nominees, members of the Senate can depend on two things to support whatever position they take: poor memory and death. Nominations are so rare that most people have forgotten the events of all but the most recent confirmation battles, and there is usually no one around to recall what standards were applied even a few generations ago. Death and forgetfulness give senators a liberating ability to say pretty much whatever they want about the sacred "traditions" and "history" of judicial selection and confirmation. In the most recent confirmation discussions, senators who support the president have complained that the confirmation process has become too political and have threatened to eliminate Senate filibusters if invoked, all in the name of protecting the process from partisanship. Senators on the other side of the aisle, by contrast, have condemned the president for attempting to reshape the Court based on political ideology.

Both sides assert that there has been a breakdown of the bedrock criteria that have guided prior nominations and confirmations. In reality, the nominations and confirmations of Supreme Court justices have always been intensely political events that are decided by one thing above all else: which side has the votes.

Article II, Section 2 of the Constitution, which establishes the process for appointing Supreme Court justices, intentionally provides no standards. The appointments clause states only that the president shall nominate justices, "and by and with the Advice and Consent of the Senate, shall appoint" those justices. The decision not to establish any standards for advice and consent was part of a compromise that came out of the Constitutional Convention itself. The original drafters proposed that Congress appoint the justices, while the Federalists pushed for the president to have that power. The eventual compromise gave the president the primary power to choose appointees, but gave the Senate the lesser (but still important) power to withhold consent. Alexander Hamilton, who supported a strong president, tried to limit the bases by which the Senate could reject a nominee. But after some discussion, the effort was abandoned because the sides could not agree on any specific criteria.

Although Hamilton and his followers had hoped that the Senate confirmation would be perfunctory, it hasn’t worked out that way. Indeed, our first president, George Washington, learned that lesson the hard way, when he was unable to gain confirmation of his first nominee for chief justice in 1795. The Senate has continued to exercise its right to withhold its consent, rejecting approximately 20 percent of all nominees. Between 1789 and 2005, the Senate formally rejected 28 of the 146 candidates nominated by the president. Another 12 candidates, including President Bush’s original choice to replace Justice Sandra Day O’Connor, were withdrawn because the chances of Senate approval seemed dim.

Why this happens varies. Often the reason a candidate is rejected has less to do with the nominee’s objective "qualifications" than with the power or goals of the president who nominated him or her. Historian Henry Abraham, who has studied and catalogued each rejected appointment, has concluded that most of time when candidates are rejected, the reason is political.

Disqualifying Political or Judicial Philosophy
Since the time that George Washington unsuccessfully nominated John Rutledge to be chief justice of the United States, nominations have failed because of opposition to the justice’s political or philosophical ideology. This often relates to a hot button issue of the day that seems fairly narrow in retrospect. Rutledge, who had previously served on the Court with distinction, was rejected for his second appointment because he opposed the Jay Treaty. James Madison’s nomination of Alexander Wolcott foundered by a vote of 24 to 9 because Wolcott supported isolationist policies when he was a customs collector. In the 1980s, President Reagan’s nomination of Robert Bork failed mainly based on concerns about Bork’s rigid judicial philosophy on a range of controversial issues including free speech, reproductive privacy and the power of the executive.

Pivotal Appointments
Some rejections occur because the justice being nominated would fill a pivotal position that could affect the Court’s direction. While the same candidate might have survived the process if nominated at a different time, the line-up of the Court at that moment makes the candidate’s role too important. President Martin Van Buren’s pick for the Court, Peter Daniel, was rejected because of concerns that Van Buren’s predecessor had added too many anti-federal justices to the Court and that Daniels would tip the balance too far. At the dawn of the Civil War following the Dred Scott decision, the Senate coalesced around defeating Secretary of State Jeremiah Black in order to allow President-elect Lincoln to make an appointment that would take the Court in a different direction. Likewise, the Senate’s rejection of one of President Hoover’s nominees, John Parker, was driven largely by the perception that the Court was closely balanced between justices who would support economic reform and those who would not. The Senate rejected Parker not because of any lack of skill or experience, but because of his anti-labor views. Ironically, the justice who ultimately filled that post, Owen Roberts, held similar views but was simply more adept at hiding them. After his appointment, he became one of the infamous Four Horsemen of the pre-New Deal era.

Political Unreliability
Just as hazardous as an obvious political agenda is the absence of such an agenda. President Grant’s nominee for chief justice, Caleb Cushing, was withdrawn, notwithstanding his intellectual qualifications, because he was perceived as too willing to change political affiliations.

Likewise, Ebenezar Hoar, a highly qualified and popular attorney general was rejected 44 to 23 largely because he maintained a deliberately non-political approach to deciding legal issues. This factor was probably also significant in President Bush’s decision not to nominate his friend Attorney General Alberto Gonzalez (who was perceived as moderate on privacy issues) and to withdraw the nomination of his other good friend – Harriet Miers. In both cases, his own party was not confident enough that Gonzalez or Miers would toe a conservative line.

Public Opposition
On some occasions, concerted or sustained opposition by interest groups can derail a nominee. This occurred in the Bork nomination, during which liberal groups mounted vigorous attacks on his writings. Conservative groups were nearly successful in blocking the nomination of Justice Louis Brandeis, while labor and civil rights organizations played a prominent role in the defeat of two Nixon nominees, as well as Herbert Hoover’s nomination of John Parker.

Lack of Senatorial Courtesy
On some occasions, it is not who the president nominates, but how the president asks. Grover Cleveland saw two of his nominees fail after he forwarded their names without seeking input from the Senate. Only when he managed to make peace with rival senators did he succeed in appointing Rufus Peckham to the Court – by consulting those senators and getting their blessing in advance. At the same time, obtaining advance approval from senators across the political aisle can backfire. For example, Harriet Miers’ nomination was likely undermined by the perception among the majority conservative senators that she had been found acceptable by the Senate’s Democratic leadership.

Because They Can
Perhaps the best evidence of the political nature of confirmation is that no reason at all is required to reject a candidate. A common reason for the Senate to withhold support for a Supreme Court nominee, historically, has been simple defiance toward the president who nominated him or her. For example, Attorney General Henry Stanbery – an admired legal thinker – failed to be confirmed because the Senate did not want to give the much-despised President Andrew Johnson an appointment to the Court. President John Tyler – who managed to antagonize both Whigs and Democrats alike – failed to gain confirmation of five of his successive nominees for the same reason. More recently, President Lyndon Johnson discovered that his ability to win a nomination was a fairly good barometer of his own political influence. He watched the fortunes of his friend Homer Thornberry (whom he’d nominated to replace Justice Fortas) fade and ultimately fail along with his own presidential support and power.

Finally, while the president’s party often suggests that competence is the only issue that the Senate should consider, it is actually relatively rare for incompetent people to be nominated for the Court, or, when they are, for them to be rejected. Mediocre nominees aren’t common, but they tend to make it through. President Taft successfully nominated Justice Mahlon Pitney despite Pitney’s manifest lack of intellectual firepower. Perhaps as some form of karmic justice, Taft later became the Court’s chief justice and was forced to serve with Pitney. After a year or so, Taft publicly lamented that Pitney was particularly ill-suited to be on the Court, and thereafter avoided assigning important opinions to him. President Chester Arthur also paid the price of nominating an incompetent candidate for the Court – his mentor and political machine kingpin Roscoe Conkling. Five days after being confirmed, Conkling declined the post when he realized that he really could not do the job. Indeed, only in extraordinary cases has the Senate rejected a candidate for lack of competence. Most notable was G. Harrold Carswell, nominated by President Nixon, who failed almost entirely on competency grounds. Indeed, there was so little to say in support of Carswell’s achievements that his Senate floor manager, Sen. Hruska of Nebraska defended the nomination by saying, "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation aren’t they, and a little chance? We can’t have all Brandeises, Cardozos and Frankfurters and stuff like that there." Even then, Carswell’s nomination failed only by a vote of 51 to 45.

In the end, the selection and occasional rejection of justices are not driven nearly as much by qualifications or professionalism as by politics. Over 90 percent of nominees are members of the president’s party, and they are invariably picked with the expectation that they will advance the president’s goals. This may include some broad policy goal such as "strict construction" or "economic reform." It may also mean some more limited political objective such as satisfying a particular interest group, geographical region or faction of the party. Likewise, the Senate is not motivated by pure ideals or a desire for judicial independence; on the contrary, it will vote at least in part on whether it supports or opposes the president and his goals, and whether it has the public support to defeat a nominee.

And so the definition of a confirmable Supreme Court nominee may come down to a fairly simple formula: a person who is not incompetent and has the good luck to be nominated when the president’s party has a substantial majority in the Senate. Probably not too far from what the framers expected.

Jeff Bleich is a litigator at Munger, Tolles & Olson in San Francisco and a regular contributor to the Bulletin.

© 2006 Jeff Bleich

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