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INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. {Th.fi films the text directIy trom the original or copy submitted. Thus, sorne thesis and dissertation copies are in typewriter face, while others may be from any type ofcomputer printer. The quality ofthis reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs~ print bleedthrou~ substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UMl a complete manuscript and there are missing pages, these will be notOO. AIso, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g.~ maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand corner and continuing from left to right in equal sections with smalI overIaps. Each original is aIso photographed in one exposure and is included in reduced fonn at the back ofthe book. Photographs included in the original manuscript have been reprodueed xerographically in this copy. Higher quality 6" x 9" black and white photographie prints are available for any photographs or illustrations appearing in this copy for an additional charge. Contact UMl directly to arder. UMI A Bell & Howell Information Company 300 North Zeeb Raad, Ann Arbor MI 48106-1346 USA 313n61-4700 800/521-0600 The expanding role of the United States Senate in Supreme Court confirmation proceedings Anthony Shane Dolgin Department of History McGill University, ~fontreal April, 1997 A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfilment of the requirements of the degree of Master of Arts © Anthony Shane Dolgin, 1997. National library Bibliothèque nationale 1+1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON K1A oN4 Ottawa ON K1 A ON4 canada Canada Your fjlq Vorre refèr811C8 Our fila Norre relerencs The author has granted a noo­ L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library ofCanada to Bibliothèque nationale du Canada de reproduce, loan., distribute or sell reproduire, prêter, distribuer ou copies ofthis thesis in microform., vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership ofthe L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts frOID it Ni la thèse ni des extraits substantiels may he printed or otheIWÏse de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son penmSSlon. autorisation. 0-612-37201-4 Canada • TABLE OF CONTENTS A CKN"O WI.E 0 G EMENTS ~, A BSTRACT " vii INTRCDUCTION 1 I. THE FRAMERS' INTENT: ADVICE AND CONSENT IN CoNSTITtJ'fIONAL THEORy Î A. The Constitutional Convention 7 B. The Ratification Dehates 15 C. The Federalist Papers '" 17 IL THE EARLy HISTORY OF SUPREME COURT ApPOINTMENTS 22 A. John Rutledge 22 B. Ale.."ander Wolcott 28 li. THE TRANSFORMATION IN SENATE RESPONSE TO SUPREME COURT NOMINATIONS (PART 1) 31 A. Tite Appointment Process Takes on Po/itical Coloration _ 32 B. The Intentions ofthe Framers' are Lost on the Senate _ 34 C. TyLer Fails To Nominate in Five Attempts 38 D. Justice's Seat Remains Vacant for Twenty-Seven lvIonths 43 E. Appointments and the Court in the Years Leading up to the Civil War _ 45 F. The "Dred Scott" Decision 48 IV. THE TRANSFORMATION IN SENATE RESPONSE TO SUPREME COURT NOMINATIONS (PART 2); RECONSTRUCTION AND BEYOND ...................................•......51 A. The Court During the Civil War and Ajter _ .51 B. Reconstnlction Appointments 56 C. The Weakening ofthe President's Role .57 D. The Decline OfPartisanship 59 E. Senatorial Courtesy Derails Cleveland's Nominees 60 v. THE TRANSFORMATION IN SENATE RESPONSE 1'0 SUPREME COURT N OMINATIONS (PART 3) , 62 • III VI. THE CONFIRMATION PROCESS IN THE MODERN ERA 66 A. The Brandeis Case 67 B. The Calling ofNominees Be/ore the Senate Judiciary Committee 70 • C. Questions Posed ta Supreme Cauri Nominees 77 D. The Bork Nomination 86 VII. EPILOGUE .........................................•.•.................................................................................93 A. Predicting A Nominee's Behavior On The Court 93 B. Judicial l ndependence 97 C. Role Distinction: The President vs. the Senate 100 D. The Future 102 E. ConcLLlsion 104 VIII. BIBLIOGRAPHY 105 A. Official and Semé-Official Publications 105 B. Books 106 C. Articles 108 • ACKNO~EDGEMENTS This thesis could never have been completed without the help ofa number of important people. Robert Hohner, my undergraduate American history professor at the University of VVestern Ontario, made learning about history so enjoyable that l thought l wanted ta be a teacher myself. He wamed me nat ta make the study of lùstory my eareer, but to keep it as a hobby; three years later, l Msh l had listened ta mm. My parents, Michael and Marilyn, and my step-mother, Caryn, provided seemingly endless encouragement, and convineed me not to abandon this project as the months stretched into years. My brothers, Jeff, Jordan, and Adam, aIso provided me with much love and support over the course of this project. Professor Leonard Moore of McGill was instrumentai in steering me away from my original topic and convincing me to choose the topic that l was really passionate about. Without the help of my advisor, Cil Troy, l would certainly never have cornpleted tItis project. Professor Troy taught has me many things, including, most importantly, the value of setting and keeping deadlines. Professor Troy's nimble mind challenged me to think about my topie in \vays that 1 had previously not, and l am grateful for rus guidance. If l possess any of the virtues of the historian, it is due, in large measure, te him. Mary McDaid ofthe History Department gave me invaluable advice and encouragement. \-Vith patience and understanding, Mary responded to my countless e-mails and repetitive questions, always adding a kind word or joke. Leonard Lee, my friend and mentor, offered. many helpful suggestions and comments, and often devoted many hours of his time to helping me to understand complex legal argun"lents. 1am deeply indebted to him. Chris Gabriel and Doug Ubben, my co-workers at the Federalist Society, also gave generously of their time to help edit the manuscript. In the three years that l have been working towards this degree, 1 have certainly learned • v more about myself than about legal history. 1 owe special thanks to several people who put up with my intolerable impatience, confusion and soul-searching. l would like ta thank Hope for the love and support she has provided over the last six years. She prornised that she would kill me if l did not complete this thesis: l believed her, and have worked hard to prevent her from having to make good on that promise. To my close friend Rochelle, thank you for your invaluable insights into the human condition and til.tO my character. My very good friend Sheri also provided much needed love and support. As l end this chapter of my life and move on to the next, l would also like to thank Katie, who has come ta mean so much. l look forward to realizing all ofour potential together. Finally, 1 would like ta extend special thanks to my best friend, Dan Senor, who first got me thinking about this topic six years ago when he presented me with Judge Bork's The Tempting ofAmerica as a twentieth birthday gift. Reading that book gave me my first exposure to the confirmation process, and ultimately led me ta write this thesis. It goes without saying that the views expressed in this thesis are my own, and do not necessarily reflect the attitudes of any of the people who assisted in its production. AB8TRACT This thesis traces the growth the United States Senate's role in the Supreme Court confinnation process from the passage of the Judiciary Act of 1789 to the nomination of Robert H. Bork in 1987. Beginning 't'vith an examination of the intellectual origins ofthe Advice and Consent Oause of the United States Constitution, the thesis goes on ta demonstrate that the Senate's role in the confirmation process has expanded weil beyond the boundaries established by the Framers of the Constitution, and that this has resulted in a usurpation of the presidential power ofappointment. The thesis concludes by arguing that the growth of the Senate's role in the confinnation process has hanned the integrity of the judicial branch by infringing upon the separation of powers, specifically demonstrating how the modem confinnation process has threatened to undennine the independence of the Judiciary. Cette thèse suit la progression du rôle du Sénat americaine dans le procédé de la confirmation de la Cour Suprême, à commencer par l'adoption de la Lois judiciaire de 1789 à la nomination de Robert H. Bork en 1987. La thèse commence par examiner les fondements intellectuels de la Oause du Conseil et du Consentment de la Constitution des Étas-unis. Elle procède à démonstrer que le rôle du Sénat dans le procédé de sa confirmation s'est elargi au­ délai des frontièrs etablies par les créateurs de la Constitution americiane, et que celui-là a resulté dans l'usurpation du pouvoir presidential à nommer les postes essentiels dans le domaine de la justice. La conclusion de cette thèse est basée sur l'augmentation que la progression du rôle du Sénat dans le procédé de la confirmation des postes judiciaires a endommagé l'intégrité de la judiciaire americaine en empiétant sur la séparation des pouvoirs, particulièrement en demontrant la façon par laquelle le procédé de la confirmation a menacé de saper l'independance de la branche judiciaire.
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