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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

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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.

• VIl 1 • L'1TRODUCTION Between 1894 and 1986 only four presidential nominations to the 5upreme Court failed to

win Senate approval.1 By the early 1980s, the likeLihood that the Senate would reject a nominee

to the Court had become so Low that one expert dubbed the confirmation process U routine."2 In

1987, however, observers of American political theater wiblessed a confirmation battle that

\-vas anything but routine. President Ronald Reagan's nomination of D.C. Circuit Court Judge

Robert H. Bork to the Supreme Court sparked a debate about the role of the national Judiciary

that was as heated as any the country had ever seen.3 As the drama of Robert Bork's future

was acted out upon the national stage, average Americans became aware of the confirmation

process in a way that they had never before been. Yet the greater involvement of the American

public in the confirmation proceedings came at a significant cost, for when the curtain finally

closed on the Bork hearings it laid bare a process that was deeply flawed.

Sorne observers attempted to explain the attacks unleashed against Bork by maintaining

that rus nomination fell into that rare category of nominations wmch threaten the uideological

balance" of the court. 5ïnce Bork was nominated to replace the moderate Justice Lewis

Powell--considered by many observers to be the Uswing vote" between the liberal and

1 President Herbert Hoover's second appointee to the 5upreme Court, John J. Parker, became the first nominec in this century not ta win confirmation after the Senate rejected him by a 41-39 margin, 72 Congo Rec. 8487 (1930). The next defcated nominee was Associate Justice Abe Fortas, whose nomination ta replace retirin~ Chief Justice Earl Warren was withdrawn by President Lyndon Johnson, 114 Congo Rec. 29, 577 (1968) after the Senate declined to invoke doture (45-43 vote, id. at 28, 933). President Richard Nixon had the distinction of being the first Executive since Grover Cleveland to have two of his nominees rejected by the Senate. Aftcr successfully nominating Warren Burger, Nixon failed ta push both Clement Haynesworth 1r., 115 Congo Rec. 35, 396 (1969) or G. Harold Carswell, 116 Congo Rec. 10, 769 (1970) through the Senate. Not included in this List is Lyndon Johnson's nominee of Homer Thornberry. Thomberry was not technically rejected since his failed nomination \Vas tied to the unsuccessful nomination of Fortas as ChiefJustice, see Richard Friedman, TIu Transformation Îll Senate Respanse ta Supreme Court Nominees,5 CARDOZO L. REv. 1 (1983). Kennit Halllists ail Supreme Court nominations from George Washington to George Bush in MAJOR PROBLEM5 IN AMERICAN CONsrlTU1l0NAL HISTORY, xl-xlviii. For a list of rejected nominees only, William Swindler, The Polit:es of "Adviee and Consent," 56 AMERICAN BAR A5S0cIAnON JOURNAL 536 (1970) providcs an excellent chart which includes statistics on the composition of the Senate at the time of rejection. ALBERT BlJ\USTElN & Roy MERSKY, THE FIR5T' ONE HUNDRID JUsrICE5 (1978) also includes a useful chapter on rejected nominecs. 2 Friedman, supra note l, at l. 3 According to one source, the Bork nomination prompted more letters and telephone calls to the Senate than any • other issue in history, ETHAN BRaNNER, BAl1l.E FOR JUSfICE, (1989) overleaf. 2

conservative blocs on the court4-many commentators argued thatJudge Bork's views were tao

radical and would upset the delicate balance of the Court.5 Still others looked to the role of the

media, claiming that in this new information age the public was destined to becorne more

invoived in the confirmation process.6 Yet while both these observations point to an anomalous

quality about the Bork nomination, and suggest that it was a product not of history, but of

contemporary politics and culture, this conclusion belies the historical record. The Bork

confirmation battle was no anomaly-it represented the culmination of over two centuries of

Senate aggrandizement of power in the appointments process.

The senators who opposed Bork did so because they believed it was appropriate for them

to consider and reject rus substantive views. In this, they were supported by an impressive

array of legal scholars and intellectuals who testified to the historical and constitutional

precedents for rejecting a nominee based on rus judicial philosophy. As conservative

commentator Grover Rees noted after Bork's defeat, however, the Senate Judiciary Committee

"seemed determined to obliterate any distinction between judicial philosophy and political

ideology"7 during the hearings, and consequently their rejection ofJudge Bork, though ostensibly

based on the nominee's judicial philosophy, was clearly based on polities. The problem which

arises is that while most observers agree that the consideration of a nominee's judicial

philosophy is within the Senate's purview, there is considerable disagreement over whether it is

appropriate for the Senate to consider political ideology. Sorne have taken a broad view of the

Senate's power, asserting, as Harvard's Laurence Tribe does, that "those who wrote the

Constitution and founded our nation had no doubt that inquiry into a candidate's substantive

4 On Powell as the "swing vote," see, e.g., id. at 17; Nomination of Robert H. Bork to be all Associate Justice ofthe Suprerne Court of the United States: Heari1lgs Before the Senate Committee 011 the Judiciary, 100th Congo lst Sess. 49 (Statemcnt ofSenatorAlan Simpson) [hereinafter Bork HearingsI. 5 See, e.g., Ronald Dworkin, nre Bork Nomination, 9 CAROOZO L. REY. 101 (1988) ("Bork's views do not lie within the scopc of the longstanding debate between liberais and conservatives about the propcr role of the Supreme Court. Bork is a constitutional radical ... "). 6 See, e.g., Frank Guliuzza et al., C/zaracter, Competency and C01lstitutionalism: Did the Bork Nomination Represent A Fundamental Shift in Confirmation Criteria, 75 MARQUEITE L. REY. 417 (1992). • 7 Grover Rees, TIre Next Bork, NATIONAL REvIEW, December 9, 1988 at 32. 3 • views was a proper and even essential part of the confirmation process."8 athers have argued that it is beyond the proper scope of the Senate's role for senators to question nominees about

their substantive views, concluding, as Bruce Fein does, that lI[t]he Senate's failure to confirm

Judge Robert Bork as a 5upreme Court Justice resulted from a flagrant rejection of the Senate's

proper role in the confirmation process."9

The purpose of this thesis is to prove that the current role of the Senate in confinning

5upreme Court Justices exceeds the power granted by the Advice and Consent Clause and has

begun to undermine the independence of the Court. In the aftermath ofhis nomination battle,

Robert Bork claimed that lI[t]he process for confirming Justices for our nation's court has been

transformed in a way that should not, indeed must not, be permitted to ever occur again."IO

5ince then, however, we have already witnessed another highly politicized confinnation struggle

with the Oarence Thomas hearings. Indeed, liberal critics ofThomas, upset by their failure to keep mm off the Court, have sustained their assault on the Justice, and have attempted to

undermine the legitimacy ofrus decisions.ll This high degree of politicization poses no small

danger to the Judiciary. As Judge Bork has pointed out, U[w]hen the Court is perceived as a

political rather than a legal institution, nominees will be treated like political candidates."u In

such an environment, candidates will not only be asked-as they presently are-but expected ta

identify their substantive positions on pending legal issues. Today, we are very nearly at this

point. Ifwe progress along the current path, eventually the notion ofjudicial independence will

be undermined. When this occurs, respect for the Court will diminish, and our system of laws,

along with any sense of moral obligation to obey them, will surely become a casuaIty of the

confirmation process.

8 LAURENCE TRIBE, Gao SAVE THIS HONORABLE COURT, 96 (1985). 9 See Bruce Fein, A Circumscribed Se1tate Confirmation Role, 102 HARV. L. REY. 687 (1989). 10 ROBERT BoRK, THETEMPrtNG OF AMERICA, 313 (1991). 11 See, e.g., MarkTushnet, Clarence Thomas: The Constitutionai Problems, 63 GEO. WASH. L. REv. 466 (1995). • 12 BORK, supra note 10 at 349. 4 • The conclusions of this thesis may be summarized briefly: The role of the Senate in Supreme Court confirnlations has expanded far beyond anything the Framers envisioned. Tlùs

expansion has occu.rred gradually through changes in political custom, constitutionallaw,

Senate tradition, popular perception, and appointment criteria. The overall effect of this

transfonnation has been to reduce the standing of the Court in the popular imagination. The

most troubling of these developments has been the attempt to legitimize substantive

lIideological review" as an appropriate and historically justifiable confirmation criterion. This,

more than any other development, has led ta a politicization of the Court, which in turn has

eroded the perception ofjudicial independence.13 While the Framers did not clearly spell out in

the Constitution how judicial appointments would work, a review of the history of the

Constitutional Convention reveals that a primary goal of the Frarners was to produce an

independentJudiciary. This is evidenced by the debates surrounding the ~tingoflife tenure

ta federal judges.l4 As historians Nonnan Vieira and Leonard Gross have thus argued, "[s]ince

the framers sought to create an independent judiciary by granting life tenure to federaI judges, it

can be argued that the 'advice and consent' clause should be interpreted in a manner consistent

with the goal ofsecuring an independent judiciary."15 Gearly the highly politicized

13 In recent years, many legal analysts have noted an inverse relationship between the politicization of the Court and public respect for it. See, e.g., Abner Mikva, /udge Picking, 10 OIST. LAWYER 40 (1985): When the Court is perceived as an apolitical, wise, and impartial tribunal, the American people have evinced a willingness to abide by its decisions. But if the Court is viewed simply as a Congress in black robes, the Court's ability to perform its constitutional function is threatened. A similar view is offered by Richard Friedman, who argues: Extended debates, both within the 5enate and beyond, concerning recent [5uprcme Court) dedsions and the political philosophy of a nominee cannot help but diminish the Court's reputation as an independent institution and impress upon the public-and indeed on the Court itse(f-a political perception ofil'i raie ....The Court is useful in oursystem ofgovemmenl, able to play a raie distinct from those of the political branches, precisely because it is, and is perceived ta be, different from those branches. Richard Friedman, Tribal Myths: [deology and the Confirmation ofSupreme Court Nominations, YAlE L. J. 1317 (1986). See also, Norman Vieira & Leonard Gross, nze Appoilltments Clause: {udge Bork and the Role of [deology in /udicial Confirmations, 11 J. LB:;AL HISTORY 332 (1989). 14 2 MAX FARRAND, THE RECORDS OF TIiE FEDERAL CONVENTION OF 1787, (1966) (revised four volume edition originally published in 1937) 73-83. • 15 Vieira & Gross, supra note 13, at 334. 5 • confirmation proceedings of the present day do not meet this test. Sïnce this examination is meant to prove that the Senate's interpretation of the Advice

and Consent Oause has not faithfully represented the original intentions ofthe Founding

Fathers, this story begins with the Constitutional Convention of 1787. Once an understanding

of how delegates to the Constitutional Convention understood the Advice and Consent Oause

has been reached, this thesis \\till examine other relevant primary evidence from the period,

including both the Federalist Papers and Anti-Federalist Papers, to determine how the Advice

and Consent Oause was perceived at the time the Constitution was ratified.

Section II will be devoted to an analysis ofthe way early Congresses interpreted the

Advice and Consent Oause. After finding that early Congresses interpreted the Advice and

Consent Oause in a manner consistent with the letter of the Constitution, Section III will

examine the Senate's departure from that document. Professor Richard O. Friedman expIains

that lI[t]he changes in the confirmation process cannot be fully explained without first

understanding in sorne depth the role played by the Supreme Court in the national crisis of Civil

War and Reconstruction."16 Thus, Section IV will detail the changing role ofthe Court during

this periode In addition to this, Section IV will examine the history ofjudicial appointments

during Reconstruction to show how the Republicans in the Senate irnposed their ideology upon

the Court and undercut its standing as an independent institution.17

Section V will examine the growth of the Court's power at the tum of the century and how

this altered the confinnation process. Section VI examines the appointments process from the

tum of the century ta the Bork hearings. Much scholarship from tItis period depicts the

confirmation process as routine and points to an all powerful Executive, at least as far as

Supreme Court appointments are concerned. Beneath the surface, however, various chang€s

were taking place that enhanced the power of the Senate and created the potential for a

16 Friedman, supra note l, at 5. • 17 Ed. 6 • confirmation battle like Bork's. Finally, the Epilogue draws on the lessons of the past ta suggest a future standard for the confirmation process.

Sorne may choose to dispute the merits of this thesis from the outset based upon the

correct assumption that the Senate has not often exerdsed great power over Supreme Court

appointments in this century. However as the Bork nomination proved, the Senate has beconle

an extraordinarily strong player in the confirmation process for Supreme Court Justices. It

would be wrong to think that because senators have not always used their power, that they

have had none to wield. On the contrary, the history of the American Republic is replete with

examples of the Senate aggrandizing power in the judicial appointments process. This is the

story of that expansion of power and its costs. 7 • 1. THE FRAMERS' INTENT: ADVlCE AND CONSENT IN CON5TITUTIONAL THEORY

ln aIl very numeraus assemblies, ofwhatever characters campased, passion neverfilils ta mrest the scepter[rom reason. Had every Athenian citizen been a Sacrales, every Athenian asselnbly would still have been a mab.

James Madison explaining why the Legislative branch was ill suitcd. to appoint Suprcmc Court Justïccs--Fcdcralist :155.

A. The Constitutional Convention

When the delegates to the Constitutional Convention arrived in Philadelphia in the spring

of 1787, they faced a most daunting challenge. As events during America's first decade proved,

the Articles of Confederation failed ta meet the challenges faced by the fledgling nation. A new

compact between the States was necessary ta revive the country, which had a1ready

accumulated a 39 million dollar debt by 1787.

For a gathering with such grandiose aims, the Constitutional Convention began

inauspiciously. Slated to convene on May 14, poor atiendance forced the assernbled delegates

ta adjoum "from day to day" in anticipation of new arrivaIs.lB These delays were not weIl

received, particularly by General George Washington, who '"T'fate to rus friend Arthur Lee that

waiting for the absent delegates had served to "sour the temper of the punctuaI members, who

do not like ta idle away their time."19 As frustration mounted with each new day, delegates

continued ta trickle in, and by May 25 seven states were fully represented.2D With more than

half of the states now represented, the delegates were satisfied ta begin the proceedings.

The first arder of business was to elect a President. Legitimate contenders for the post

numbered only two, George Washington and Benjamin Franklin. Since the Pennsylvania

18 1 FARRAND, supra note 14, at 1. On the first day of the Convention, only two states, Virginia and Pennsylvania, were represented at the State House, see Washington's diary entry for May 14 reprinted in 3 FARRAND, at 20 (Appendix A, Selection VIIO. 19 Letter of George Washington to Arthur Lee, May 20, 1787. Reprinted in 3 FARRA ND, supra note 14, at 22 (Appendix A, Selection XIV). 20 The seven states were New York, Delaware, Pennsylvania, Virginia, North Carolina, South Carolina and New • Jersey. 8

delegation had decided to confer the honor upon General Washington, the matter was quickly • 21 called to a vote. The nomination was unanimously received, and General Washington was

duly conducted to the chair by John Rutledge and Robert Morris. With this issue out of the way,

the delegates adjourned for the weekend.

When the Convention reeonvened on Monday, May 29, the delegates were ready to

consider the weightier questions before them. The first man ta address them was Governor

Edmund Randolph ofVirginia, who stated that sinee the Convention had been conceived by

Virginia's representatives, he feit obliged to offer sorne reeonunendations. Though the Congress

had authorized the deiegates to review and amend the Articles of Confederation,22 it was soon

apparent that Governor Randolph and the Virginia delegates had more extensive plans. As

Professor Lino Graglia has described, Randolph arrived with lia fully formulated plan for an

essentially unitary system ofgovernment."23 The delegates quickly realized that the Virginia

Plan was a revolutionary proposai to reshape, redesign, and reinvigorate the federal

government.

On the subject of the Judiciary, Randolph's Ninth Resolution proposed the creation of

"one or more supreme tribunals ... to be chosen by the National Legisiature."24 It was an

important resolution, if only beeause it set the tone for all future debate about appointments,

but it was by no means unanimously received. Shortly thereafter, Charles Pinckney of South

Carolina introduced a rival proposai that, though not as detailed as the Virginia Plan,

contained severa! popular resolutions. One such resolution was number seven, which proposed

granting the Senate the "sole and exclusive power ... to appoint ... Judges of the Supreme

21 Franklin himselfhad pianned to make the nomination, but indement weather and his health had prevented him from attenàing on May 25, 1 FARRAND, supra note 14, at 4. 22 According to the resolution adopted by the Congress, the Convention was caIIed merely to remedy the dcfects "evinced ... in the present Confederation," Resolution of Congress, 21 February 1787, reprinted i71 3 FARRAND, supra note 14, at 13-14 (Appendix A, Selection l). See also, Lino A. Graglia, nie Growth of Nationaljudicial Power, 14 NOVA L. REY. at 53 (1989). 23 [do at53. Though Governor Randolph had been selected to introduce the Virginia Plan,James Madison \Vas the principal architect ofthe resolutions which bore Randolph's name. • 24 1 FARRAND, supra note 14, at 21. 9

Court."25

The tension between these two proposals proved to be a harbinger of the future, for less

than a week after Randolph's opening remarks, the question of appointments catapulted the

Convention into a serious debate. The catalyst of this debate was James Wilson of

Pennsylvania, an ardent opponent of Legislative appointments. Arguing that "experience

showed the impropriety ofsuch appointments by numerous bodies," Wilson suggested that the

power of appointment should be reserved for the Executive.26 This idea quickly came under

attack from South Carolina delegate and future Supreme Court Justice John Rutledge, who

wamed that the people of the United States would surely be more fearful of appointments

made by the Executive-\-vhich he dubbed a step IItowards Monarchy"-than of those made by

the Legislative branch.27 It seemed as though an impasse was fast approaching.

Sensing that the debate was nearing its boiling point, Benjamin Franklin weighed in at this

time to encourage rus countrymen to embrace the spirit of compromise. Noting that only two

nlodes of choosing had thus far been discussed, Franklin invited the delegates ta consider other

modes ofselecting judges Ilas might occur to other gentlemen."28 With tongue firnùy in cheek,

Franklin related the Scotch method of nomination, whereby the selection ofjudges was

entrusted to lawyers, IIw ho always selected the ablest of the profession in order to get rid of

him, and share rus practice (among themselves)."29 While these remarks softened the tone of

the debate and infused it with sorne much needed levity, Franklin's comments also foretold the

need for a compromise on this issue.

With Franklin back in his chair, James Madison now offered sorne thoughts on judicial

selection. Though Madison was allied with those delegates who advocated the creation of a

25 3 FARRAND, supra note 14, at 599. 26 1 FARRAND,5Upra note 14, at 119. 27 Id. lt is somewhat ironie that Rutledge opposed pladng the power ofappoinbnent within the Executive branch. Less than 10 years 1ater he became the first supremeCourt nominee ever rejected by the Senate. 28 Id. at 119-20. 29 Id. at 120. 10 powerful Executive--men like James Wilson and Gouvernuer Morris of Pennsylvania, Alexander

Hamilton of New York, and Nathanial Gorham of Massachusetts--he was enough ofa moderate to appeal to most of those assembled. Like Wilson before him, Madison opposed vesting the power of appointment in the Legislature or "any numerous body."30 But like

Rutledge, he too \.vas wary ofthe dangers involved ingiving too much power to the Executive.

As he hinted to the delegates, he was "rather inclined to give [the power of appointment] to the

Senatorial branch."31

Though Madison had succeeded in establishing hirnselfas a leader in the debate over judicial appointments, he knew better than to attempt to resolve the question at this early stage.

His keen political sense told him that the debate had barely scratched the surface of the issue.

Thus instead of tipping ms hand by suggesting wholesale changes to Randolph's Ninth

Resolution, Madison quietly moved that the words U appointment by the Legislature might be struck out, and a blankleft to be hereafter filled upon maturer refiection."32 Wilson-eorrectly assuming that this sounded the death knell for Legislative appointments-eagerly seconded the motion, which passed over the negative votes of Connecticut and South Carolina.33

Madison's argument against vesting the power ofappointment in the Legislature shaped the emerging debate over judicial appointments. As Madison informed his colleagues,

"Legislative talents, which [are] very different from those of a Judge, commonly recommended men to the favor of Legislative assemblies."34 In other words, la\vmakers-most of whom lacked the "requisite qualifications" of a judge-would be prone to confuse the distinction

30 Id. 31 Id. 32 Id. 33 Ed. It is interesting to note that after Madison's resolution passed, Alexander Hamilton suggested the idea of the "Executive appointing or nominating the Judges to the Senate which should have the right of rejecting or approving." This description, offered by delegate William Pierce of Georgia, is the only existing record of Hamilton's proposaI. Several other participants took comprehensive notes during the Convention-induding Secretary William. Jackson, Rufus King of Massachusetts, Robert Yates ofNew York, Madison of Virginia, but only Pierce made mention of Hamilton's resolution, which was substantively very similar to the appointments clause as ratified, see id. at 115­ 129. 34 Id. Il

between judging and lawmaking ifgiven power overjudicial appointments. As Judge Randall

• Rader has noted, Madison believed that this difference was crucial:

[Madison] seemed resolved that the selection of nonpolitical officers of the judicial branch should not faH prey to the intrigues and partialities of the political process. Moreover, Madison clearly informed the Convention that the means of selecting judges could affect the institutional character of the third branch. Madison was destined to struggle for sorne lime to find the best institutional means to select judges possessing legal, rather than lawmaking, qualifications. [But] in any event, it is hard to escape the conclusion that Madison wished to divorce the poIïtics of lawmaking from the process of selecting legal officials.35

Though Madison remained unsure about the proper fonnulation of the appointments clause, by

this time he had evidently come to reject the idea of Legislative appointments as embodied in

the Virginia Plan.

After this debate, the issue of judicial appointments was not discussed until June 13,

when the Committee of the Whole met to revisit the question.36 5ince Madison had yet to

submit a new proposai for confirming judges, Charles Pinckney and Roger Sherman of

Connecticut now attempted ta restore the already defeated Legislative appointments clause,

but Madison patiently reiterated his objections and convinced the men ta withdraw their

motion.3? Recognizing that rus failure to propose a substitute had breathed life into a dead

issue, Madison now moved in favor of appointment by the Senate. As Madison explained to

the delegates, the Senate 1/as a less numerous and more select body, would be more competent

judges."38 The delegates accepted this proposai without a recorded vote, thus ending the hopes

of proponents of Legislative appointments.39

If the Convention had rejected the possibility ofappointrnents by the Legislature, the idea

35 Randall Rader, The Independence of the ludiciary: A Critical Aspect oftire Confirmation Process, 77 KEN11JCKY L]. 780 (1988-89). Though the Advice and Consent Clause as ratified lumped political and judidal appointments in togcther, it is dear from the Convention that the Framers expected the Senate to apply a non-political standard to judiciaJ appointments. 36 The Committee of the Whole was established May 30 to consider the state of the American Union. AH the members of the Convention sat on this committee, which was chaired by Nathaniel Gorham of Massachusetts, 1 FARRAND , supra note 14, at 2, 16. 37 rd. at 232. 38 Id. at 233. 39 Id. 12

of senatorial appointment was not universally accepted. Madison had managed to sell the

Senate to rus colleagues as a more deliberative body less prone to "intrigue and partiality," but

he still had to assuage the fears of those concerned with separating the polities of lawmaking

from the operation ofjudicial selection. Included in this group were delegates from the smaller

states, many of whom feU that regionalism and parochialism would dominate the process of

judicial selection as administered by eitherbranch of the Legislature.40 OnJune 14, New Jersey

delegate William Paterson addressed the Convention as the self-styled representative of these

smaller states and asked for additional time to contemplate the Virginia Plan.41 Paterson had

contributed little to the early stages of the Convention, though he had been present since May

25.42 Throughout the proceedings, however, he had been unhappy with the national character

of the Virginia Plan, and along with delegates from Connecticut, Delaware, Maryland, and his

home state, Paterson had devised an altemate plan based on "purely federaI" ideals. Dubbed

the New Jersey Plan, this proposal was introduced by Paterson on June 15. Included among its

proposais was a resolution to vest power over Supreme Court appointments with the

Executive.43

With two separate resolutions for appointments now before the Convention, Alexander

Hamilton took to the fIoor on June 18 to address the nature and function of Executive power.

Hamilton extolled the virtues of a strong Executive, and suggested that prudence dictated the

wisdom of vesting power over judicial appointrnents with the President "subject to the

approbation or rejection of the Senate."44 This was not the first time he had suggested this

40 Rader, supra note 35, at 781. 41 The resolution on judicial appointments that passed the Committee onJune 13 was but one of 19 resolutions, aH stemming from the Virginia Plan, to be passed that day. Paterson, was not objecting solely to the resolution on judidal appointments, but to the whole Virginia Plan, 1 FARRAND, supra note 14, at 223. 42 For information about attendancc at the Convention, consult 3 FARRANO, supra note 14, at Appendix B. 43 Resolution # 5 provided: Reso(ved thal a federal Judiciary be established to consist of a supreme Tribunal the Judges of which lo be appointed by the Executive, and to hold their offices during good behavior .... Reprinted i11 THE ANTI-FIDERAUsr PAPERS AND THE CONsrITUTIONAL CONVENTION DEBATS 64(Ralph Kctchum, cd.) (1986). 44 1 FARRAND,Sllpra note 14, at 292. 13 formula for appointment, but this time Hamilton's suggestion was part of a fully-fonnulated theory of Executive power that more greatly impressed the delegates. Though powerover judiciaI appointment remained with the Senate for the time being, bath Hamilton's address and the New Jersey Plan served to underscore the relative strength of Executive appointments.

The importance ofHamilton's thinking on the subject ofjudicial appointments became clearer a month later, when the question was revisited by the Convention. On July 18,

Massachusetts delegate Nathaniel Gorham moved that the power of appointment be vested in

the Executive, with the lIadvice and consent" of the Senate.4S Though he agreed withJames

Madison that the Senate would be better disposed to select judges than the Legislature, Gorham aIso believed that the Senate would be iltoo numerous, and too little personally responsible, to ensure a good choice."46 As he told the delegates, the mode he \-vas suggesting worked quite weil in his honle-state of Massachusetts, where it had been in use for over 140 years.47

Before Gorham's resolution could be caIled to a vote, supporters of Executive appointments 100 by James Wilson and Gouverneur Morris called a vote on that question.48

With the Gorham resolution looming, however, this resolution attracted the support ofonly two states.49 Next on the docket, Gorham's motion won the assent of haIf of the delegations, but since eight states were present the vote ended in a tie.so Despite the fact that the motion was not adopted at this time, the close vote proved that the delegates were warming to a compromise that would address Gorham's concerns about vesting the power ofappointment in

4S 2 FARRAND, supra note 14, at 4l. 46 [do

47 Chapter lI, section 1, article IX of the Massachusetts Constitution at the time read: IlAil ]udidal officers ... shaH be nominated and appointed by the Governor, by and with advice and consent of the [second branch of the Legislaturel," 5 SOURCES AND DocUMENTS OF THE UNITID STATF5 CONSTITUTIONS 100 (William Swindler; ed.)(1975). See a/so, Vieira and Gross, supra note 13, at 315. 48 2 FARRAND, supra note 14, at 43-4. 49 Massachusetts and Pennsylvania voted in favor of Executive appointments, but the six other states to vote on the issue rejected the motion, id. at 44. 50 The Georgian delegation was absent on that day, id. at 44. 14 • the Senate.51 This consensus would shape the debate for the remainder of the Convention. Included in this emerging consensus was the powerful James Madison, who had been

impressed by the successful showing ofGorham's proposal and by Gorham's eloquent

refutation of the alleged distinction between Legislative and senatorial appointments. Madison

now implicitly endorsed Gorham's views by suggesting that the Presidentbe granted power over

judicial appointments subject to the approval of two-thirds of the Senate.52 Weary from a long

day, the delegates unanimously agreed to postpone consideration of Madison's latest

compromise, but Gorham had carried the clay with two major victories: The influential

Madison was no\v in his camp, and the Convention had agreed to revisit the issue on rus

terms.53

From this point forward, the debate remained stable. Though tiJ,.e language of1vladison's

original motion (in favor ofsenatorial appointment) remained in the draft document, forces

coalesced around the refonnulation he and Gorham had offered. In response to the criticisms of

Edmund Randolph and Elbridge Gerry of Massachusetts, Madison dropped the two-thîrds

requirement onJuIy 21, and by the time judicial appointments were debated again, on August

23, the sun had set on Legislative appointments. On that day, Edmund Randolph-noting that

virtually every speaker had umade objections to the clause as it stood,"-suggested the

delegates refer the matter ta the Special Committee on Postponed Matters, or the Conunittee of

Eleven (one delegate from each state).S4 With this the debate had come to a close.

When the Committee of Eleven reported back to the Convention on September 4, they

presented an appointments clause that reflected the obvious influence of Hamilton, Gorham

and :lviadison:

The President by and with the advice and Consent of the Senate, shaH have the power to make Treaties; and he shall nominate and by and with the advice and consent of the

51 Rader, supra note 35, at 783. 52 2 FARRAND, supra note 14, at 44. 53 Id. 54 Id. at 393. For the various objections, see generally id. al 380-395. 15

Senate shaH appoint ambassadors, and other public Ministers, Judges of the Supreme Court and aLl other Officers of the U-S-, whose appointments are not otherwise • 55 herein provided for.

Gouvemuer Morris--earlier a staunchadvocate of Executive appointments--summarized the

opinion of the majority in rus description of the new clause: IlAs the President was to

nominate, there would be responsibility, and as the Senate was to coneur, there would be

security (emphasis added)."56 When the eleven delegations voted on the proposed draft of the

judicial appointments clause three days later, this language was accepted unanimously, and the

Advice and Consent Oause was born.57

B. The Ratification Debates

While the participants at the Constitutional Convention seemed ta be clear on what L.t,.ey

were getting with the Advice and Consent Oause, the delegates ta the state ratifying

conventions were apparently not so sure. Severa! critics complained that the mode of judicial

selection placed tao much power with the Executive. On the other hand, athers maintained that

the Senate had tao much power over the President. The resolution of these conflicts shed

significant light on the tenor of the Advice and Consent Oause.

The most vocal critic of the Advice and Consent Oause was Maryland's Luther Martin,

an erstwhlle delegate to the Constitutional Convention who left Philadelphia without signing the

finished product.58 As one of only a handful of delegates who refused to sign the Constitution,

Martin's opposition was particularly damaging.59 In an address before the Maryland

Legislature on November 29, 1787, Martin spelled out rus opposition to the presidential power

of appointment:

55 Id. at 498. 56 Ed. at 539. 57 Id. at 534. 58 For Martin's attendance record, consult 3 F.'\RRAND, supra note 14, at 589. While Martin did not stay until September 17 to voice his opposition to the Constitution, he had made his opinions known on several occasions, see, e.g., the transcripts from September1, id. at 476. 59 The others were Edmund Randolph and George Mason of Virginia, Robert Yates and John Lansing of New York, and Elbridge Gerry of Massachusetts. 16

lt was said, that the persan who nominates will always in reality appoint, and that this was giving the President a power and influence, which, together with the other powers bestowed upon him, would place him above ail restraint and control .... In fine, it was urged, that the President, as here constituted, was a king, in every thing but the name ... [and] that, from his having the appointment of aIl the variety of officers, in every part of the of the civil department for the union, who will be very numerous, in them and their connexions, relations, friends, and dependents, he will have a formidable hast, devoted to his interest, and ready to support his ambitious views ... These circumstances, combined together, will enable mm, when he pleases, ta become a king in name, as well as in substance, and establish himself in office not only for rus own life, but even, if he chooses, to have that authority perpetuated to his family.60

While Martin's eloquence represented the Anti-Federalist cause in Maryland with a conviction unsurpassed by the Federalists in that state, his concems were not representative of those lodged at ratification proceedings elsewhere.

In Pennsylvania, for example, opponents of the Constitution expressed concern that the

Senate had too much power and could easily make the President its tool.61 This appraisal was aIso offered at the Virginia convention by George Mason and Richard Henry Lee. Masan-who had spent more than three months at the Constitutional Convention-found the lIimproper power of the Senate in the appointment of public officers" so offensive that he did not sign the

Constitution.62 Lee was also wary of the proposed Constitution, arguing that its chief defect was that "th.e President is connected with or tied to the Senate; he may always act with the

Senate, but he can never effectually counteract its views."63 A similar objection was raised by

Samuel Spencer at the North Carolina convention: IIThe President may nominate, but they [the

Senate) have a negative on his nomination, tilt he has exhausted the number of those he wishes to be appointed. He will be obliged, finally, to acquiesce in the appointment of those whom the

Senate shall nominate, or else no appointment will take place."64

60 Reprinted in 3 FARRAND, supra note 14, at 172-232 (especially 21B). 61 JOSEPH HARRIS, THE ADVICE AND CONSENT OF THE SENATE, 26 (1953). 62 Mason felt that the Advice and Consent Clause, among others, "dangerously blend(ed) the executive and legislative powers," 2 THE COMPLETE ANTI-FEDERAUsr (Herbert]. Storing, ed.,) at 11-13. See also 3 Farrand, supra note 14 at 639; Harris, supra note 61, at 25. 63 Harris, supra note 61, at26. Lee had been elected to serve as a member ofthe Virginia delegation, but declined, 3 FARRAND, supra note 14, at 55B. 64 Quoted in Harris, supra note 61, at 26. 17

Though fears about the Senate's proposed role in the appointment process were clearly in

evidence during the ratification process, these fears did not dominate. In the various states,

defenders ofthe Advice and Consent Oause helped to reshape the debate and assuage the

fears of those alarmed by the Senate's proposed role. Responding to opponents in

Pennsylvania, James \Vilson reassured delegates that /lin the exercise ofevery one of [its

powersJ, the Senate stands controlled; if it is that monster which it is said to be, it can only

show its teeth, it is unable to bite or devour."65 The President "must nominate before [the

Senate] can vote," Wilson argued: "[H]e holds the helm, and the vessel can proceed in neither

one way nor another without his concurrence."66 James Iredell, a delegate at the North Carolina

convention, captured the true spirit of the Advice and Consent Oause when he told delegates

there IIthe Senate has no other influence but a restraint on improper appointments."67

Maryland's James McHenry aIso interpreted the Senate's role narrowly, arguing that the Advice

and Consent Oause served to check the power of the Executive llwithout endangering Liberty

by the junction of the Executive and Legislative."68

While it is clear that severa! questions about appointments \vere raised during the

ratification debates, these questions rarely focussed attention on the Executive. Most of those

who expressed concern over judicial selection focussed their attacks on the power of the Senate

to thwart the will of the President. Wherever these concems were raised, however, they ~vere

rejected by defenders of the proposed Constitution. c. The Federalist Papers The most useful insights into the proposed Constitution came in the form of The Federalist

Papers, a collection of essays written by John Jay, James Madison and Alexander Hamilton.

65 James Wilson in the Pennsylvania Convention, December 4, 1787. Reprillted in 3 FARRAND, supra note 14, at 162. 66 Quoted in Harris, supra note 61, at 26. 67 Id. 68 James McHenry before the Maryland House of Delegates, November 29, 1787. Reprinted in 3 FARRAND, supra • note 14, at 150. 18 • Hatched by Hamilton as part of his scheme to secure ratification in New York, The Federalist Papers now stand as the most authoritative text ever \Vritten on the Constitution. For the

purposes of this discussion The Federalist Papers are important for two reasons: First, since

Hamilton conceived of the idea that both the Senate and the President would play a raIe in the

appointment of judges, ms opinions on how tms system would function are particularly

valuable. Second, because it was Madison who convinced the delegates to abandon Legislative

appointments in favor of the constitutional model, he is perhaps the most authoritative source

on appointments.

In Hamilton's opinion, the role of the President was significantly more important in the

appointment process than that of the Senate. As he explained in The Federalist No. 66:

[t will be the office of the President to nominale, and with the advice and consent of the Senate to appoill t. There \vill, of course, be no exertion ofcllOice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves c/zoose-they can only ratify or reject the choice he may have made. They might even entertain a preference to sorne 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 ment might inspire and the proofs of the want of it destroy.69

Hamilton thus believed that the President had the sole power of selecting a candidate, and that

the Senate .could not reject a qualified candidate simply because it favored the candidaey of

another. As Hamilton pointed out, there is no affirmative constitutional compulsion to force

the Senate ta confirrn any of the President's choices. Ultimately, however, the Senate must

accept a candidate of the President's choosing if the Judiciary is to functïon.70

69 ALEXANDER HAMILTON, THE FEDERAU5T No. 66, (Clinton Rossiter, cd.,) (1961) 405. It should be notcd that in both THE FEDERAUST No. 66 and No. 76, the two places where Hamilton is most concemcd with the At:"?ointments Clause, he is not speaking solely of judicial ~ppointments,but of ail Presidential appointments requiring Senatorial approval. As Vieira and Gross note, "Hamilton apparently envisioned no differences in the manner of appointing judges from that of appointing other officers." As evidence of this they point to THE FEDERAUsr No. 78 at 464 (fiAs to the mode of appointing judges: this is the same with that of appointing the officers of the Union in general .. .") see Vieira & Gross, supra note 13, at 342 n. 65. 70 See e.g., Henry Monaghan, nre Confirmation Process: Law or Potities, 101 HARV. L REV. 1206 n. 20 ("the Senate may not act 50 as to materially impair the functioning ofthe Court "). 19

Perhaps the best justification for why Hamilton placed greater faith in the choice of the

President was offered by James Madison, who noted in The Federalist No. 55 that lI[i] n all very

numerous assemblies, of whatever charaeters composed, passion never fails to wrest the scepter

from reason."71 IfHamilton was wary about the Senate exercising undue influence over the

appointments process, he was also concemed with the prospect of leaving too much power in

the hands of the Executive.72 In The Federalist No. 76, he painstakingly set out the guidelines

whereupon the Senate might rightfully reject a nominee.73 IITo what purpose, then, require the

cooperation of the Senate?" Hamilton asked rhetorically:

l answer that the necessity of their concurrence would have a powerful, though in generaI, a siIent operation. [t 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 Stale prejudice, from family connection, from personal attachment, or from a view to popularity.74

Hamilton was not oblivious to the fact that an Executive might abuse the power of

appointment. He therefore accepted that the Senate's power to advise and consent induded the

power to reject a nominee. But he steadfastly held to the notion that in cases "where there were

nat special and strong reasons for the refusalll the Senate \vould defer to the President's

constitutionally enumerated power in this area.7S

In SUffi, by the time the Constitution was ratified, the lion's share of the power over

judicial selection was held by the President. While the Senate was given the power to function

as a check on the Executive, the President was, in Alexander Hamilton's words, the "principal

71 JAMES MADISON, THE FEDERAUsr No. 55, supra note 69, at 342. 72 It is important to remember that the Constitutional Convention was originally faccd with a choicc between the Virginia Plan, which gave the power ofjudidal appointments solely to the Legislature, and the NewJersey Plan, which vested control over appointments in the hands of the Executive alone. It was Hamilton who first suggested that a compromise was possible, choosing this option over the Ne\"/ Jersey Plan. 73 Interestingly, the Constitution itself is silent on this point. Nowhere in the Constitution are the powers and strictures ofthe Advicc and Consent Clause enumerated. The only thing that the clause makes implidtly c1ear is that its goal is to secure meritorious nominees, Monaghan, supra note 70, at 1205. 74 ALEXANDER HAMILTON, THE FEDERAUsr No. 76, supra note 69, at 457. 75 Id. at 457. 20

agent" in charge ofselecting ]ustices.76 If the President was the main actor, however, what role

was the Senate intended to play? Hamilton argued that the Senate's job was to "prevent the

appointment of unfit characters from State prejudice, from family connection, frOlTI persona!

attachment, or from a view to popularity,"77 but the Appointments Oause provides no

guidelines for Senators beyond the words themselves: "Advice and Consent." "Consent" is

defined easily enough; the Senate has the right to confirm or reject the President's choice. But it

is clear from Hamilton's writings that the Framers intended there to be strict limits on the

Senate's power ta reject a Supreme Court nonlinee. What then, can the Senate's power be

properly said to include? What conduct is excluded by the Constitution?

In nlany ways, these are the key questions which historians of the confinnation process

have sought to answer. Though the Appointments Oause does not itself contain the answers to

these questions, the Constitutional Convention and the documents that it produced do. As

Hamilton pointed out in The FederaList Papers, merit is certainly a factor which the Senate can

consider: Historians of the confirmation process are generally in agreement that the Senate can

examine factors \vhich contribute to an evaluation of merit, including: legal training, moral

character, and experience.78 Since Article VI of the Constitution requires senators and judges to

take an oath to support the Constitution, another factor the Senate may appropriately consider

is judicial philosophy.79 A senator is bound ta ensure that any judge he confirms will employa judicial philosophy of fidelity to the Constitution.BO Any less would be a breach of his own

oath.

Regarding what is beyond the scope of the Senate's review, two broad points can be

76 ALEXANDER HAMILTON, THE FEDERAUsr No. 65, supra note 69, at 396. 77 ALEXANDER HAMILTON, THE FEDERAUsr No. 76, id. at 457. 78 See, e.g., Wm. B. Reynolds, Adjudication As Polines By Otlrer Means: TIre Corruption of tlle Senate's Advice and Consent Fmrctio1l [n ludicial Confirmations, in JUDfOAL SELECfION: M ERlT, IOEOLOCY, AND POUTrcs, 22 (Nationêll Legêll Center for the Public Interest) (1990). 79 U.5. CONST., ARTICLE VI. For the purposes of this paper, judicial philosophy is defined as a judge's understanding ofthe proper role ofa judge. 80 This view is reinforccd by Alexander Hamilton, who wrote: "A constitution is in fact, and must be regarded by the judges as, fundamental Jaw," THE FEDERAUsr No. 78, supra note 69, at 467. 21 made. First, the Framers considered independence to be the cornerstone of the judicial branch.81

Indeed, it was precisely because of this point that judges were granted life tenure on the bench.82

Thus, as historians Nonnan Vieira and Leonard Gross have argued, "[s]ince the framers sought to create an independent judiciary by granting life tenure to federaI judges . .. the'advice and consent' clause should be interpreted in a manner consistent with [this] goaI."83 Second, since the Framers went ta significant lengths to insuIate the Judiciary from the other two branches, it can be argued that the Senate rnay not attempt to control the politicaI orientation of the Court.

In The Federalist No. 78 Alexander Hamilton maintained that "liberty would have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."84 When senators consider politics in their evaluation of judiciaI candidates, they attempt ta influence constitutional interpretation. This not only compromises judicial independence, but unites the Judiciary and the Legislature in a way the Framers clearly did not intend.

81 See, e.g., ALEXANDER HAMILTON, THE F EDERAUST No. 78, supra note 69, at 466 (ITThe complete independence of the Courts is peculiarly cssential in a Iirnited Constitution"). 82 2 FARRAND, supra note 14, at 73-83. See a/so, ALEXANDER HAMrLToN, THE FEDERAUST No. 78, supra note 69, at 46S (''The standard of good behaviour for the continuance in office of the judidal magistracy is certainly one of the most valuable ofthe modem improvernents in the practice ofgovcmment. [n a monarchy it is an excellent bamer to the despotism of the prince; in a republic it is no (ess an excellent barrier to the encroachments and oppressions of the reprcscntative body.... INlothingcan contribute 50 much to [theJudiciary'sl firmness and independence as pcnnanency in office"). 83 Vieira and Gross, supra note 13, at 334. 84 ALEXANDER HAMILTON, THE FEDERAUST No. 78, supra note 69, at 466. 22

SECTION II: THE EARLY H!STORY Of SUPREME COURT ApPOINTMENTS

The system that the Framers constructed worked as it was intended to during the

Republic's infancy. The original six appointees to the Court were weil qualified, and since there

were no clearly formed political parties, the Senate had little reason to delay the confinnation of

President \Vashington's original choices.85 Even as the hvo-party system developed, creating a

political system that was more binary in nature, the Senate rarely took issue with the President

over judicial selection. When the Senate did ïntervene, it did so with good reason. As the first

lwo rejections of 5upreme Court nominees demonstrate, the Advice and Consent Oause

functioned properly for almost a generation.

A. John Rutledge

John Rutledge had already distinguished himselfby the time President Washington

appointed him to be an Associate Justice in 1789. One of the most accomplished lawyers of his

time, Rutledge had served as Governor ofSouth Carolina, helped \-vrite the Constitution of

1787, and attended both Continental Congresses.86 Based upon this exemplary record,

Rutledge had good reason to believe he would be appointed the first Clùef Justice of the United

States.87 When President \Vashington chose John Jay to be ChiefJustice instead, Rutledge only

grudgingly accepted a seat as the most senior Associate Justice.SB He would not remain on the

Court for long. Bitter at having been passed over in favor ofJay, disappointed by the lad< of

intellectual challenges offered by Court life, and weary of the hardships imposed by the duty of

riding circuit, Rutledge resigned in March 1791.89

Neither the passage oftime nor a change of scenery could cool the burning of Rutledge's

85 See HALL, supra note 1, at xl. 86 KERMIT L HAU..,OXFOROCOMPANlONTOTHESUPREMECOURTOFTHE UNITED STATIS, 750-1 (1992). 87 Rutledge's confidence may have been bolstered by a belief that he had an ace in the hole: During the Revolutionary period, he had played a kcy role in Washington's selection as Commander-in-Chiefof the Continental Army, Vieira & Gross, supra note 13, at 322. 88 Id. • 89 Ru tledgc resigned to bceome ChiefJustice ofthe South Carolina Su premeCourt, id. 23 ambition, however. Though he toiled dutifully in Charleston, Rutledge kept one eye on the

5upreme Court. In June, 1795, when word leaked that ChiefJustice Jay \vould resign rus seat to run for Governor of New York, Rutledge wasted no time in jockeying for position among potential replacements: uFinding that Mr. Jay is eleded Govemor of New York," Rutledge wrote the President, "I take the Liberty ofintimating to you privately, that ... l have no

Objection to take the place wrnch he holds."[underlined in original]90 Without subtlety, or an appropriate degree of humility, Rutledge reminded the President of how he had been passed over for the job six years earlier:

Several of my Friends were displeased at my accepting the Office of an Associate Judge, (altho' the Senior,) of the Supreme Court, of the United States, conceiving, (as 1 thought, very justly,) that my Pretensions to the Office of Chief-Justice were, at least, equaI to Mr. Jay's, in point of Law-Knowledge, with the AdditionaI Weight, of much longer Experience, & much greater Practice.91

By great coïncidence, Washington received both Jay's letter of resignation and Rutledge's resume on the same day.92 Though he had obviously known ofJay's decision to resign in advance,

Washington had yet to settle rus mind on a suitable replacement.9J Rutledge's letter \-vas therefore tirnely, not only because it caught the President offguard, but aIso because it offered a solution to a difficult question. Washington was obviously moved by Rutledge's letter,94 for the next clay he instructed rus Secretary ofState, Edmund Randolph, te nominate Rutledge as

Jay's replacement.95 In the meantime, Randolph was told to install Rutledge as the acting-Chief

90 1 THEDocUMENTARYHISTORY OF THESUPREMECOURT OF TIiEUNITEDSTATES, 1789-1800,94 (Maeva Marcus andJamcs R. Perry cds.) (1985) (hereinafter DOCUMENTARY HISTORYI. 91 Id. 92 Both letters arrived on June 30, 1795. For Washington's responsc to Rutledge, see id. at 96-7. 93 Washington had becn actively considering two candidates when he received the Rutledge letter. Treasury Secretary Alexander Hamilton seemed to be favored by the President, butSamuel Chase was a formidable candidate as weIl, seeCHARLESWARREN,1 THE SUPREMECOURT IN UNrnDSTATESHISTORY, 125-7 (1922). Rutledge was apparcntly not under consideration for the job. 94 Professor William Swindlerhas suggested that Washington may have nominated Rutledge to "make arnends" for bypassing him in 1789, Swindler supra note l, at 534. 95 See George Washington ta Edmund Randolph, 1 July 1795. Reprinted in 1 DOCUMENTARY HISTOI

navigating unch~rted waters. But if he was technically still beholden to the Senate for its

consent, Washington had little reason to worry since the Federalist majority there was fiercely

loyal to the administration. Moreover, Rutledge had already been confirmed by a sinlilar Senate

in 1789.97 Ifthe composition of the Senate had changed little in the intervening six years,

however, the nominee was decidedly different. Though once a nominal Federalist, by mid-July , 1795 Rutledge had Ieft the FederaJist corner and stepped into the ring to oppose the Jay Treaty,

the key to President Washington's Congressional program.98 It was a crucial error, for the

candidate alienated those who might have othenvise supported him.99 In the popular press,

Rutledge was 50 badly abused that he was scarcely recognizable to those who knew mm weIl. FinalIy, after the nomination had dragged on for five months, Rutledge was rejected by a 14-10

vote.lOO

As the first rejection of a Supreme Court nominee, the Rutledge case has justifiably drawn

great interest. 5ince the nomination came so quickly after the ratification of the Constitution,

and because six of the Framers of sat in the Senate at the time of the nomination,lOI severa!

modem observers have argued that the Rutledge case provides the most accurate reflection of

96 Rutledge was sworn in as acting-ChiefJustice on 12 August 1795. His commission was only temporary because theSenate had not yet rendered its consent. This would have to wait until the body reconvened in the fall. 97 Based on the composition of the Senate, Rutledge had ostensibly little to fear. Both the Senate that confirmed hirn in 1789, and the one he faced in 1795, were cornposed of Federalist majoritics (17-9 and 19-13, respectively), and the President was wcll-loved by these representatives, Swindler, supra note 1; at 536. 98 The Jay Treaty was a conciliatory agreement between the V.S. and Great Britain that was meant to heal the wounds inflicted by the War of Independence. It was supported by Federalists, who rallied behind the President, but opposed by Republicans ,who viewed it as an insult to Arncrica's allies during the War, the French. Sorne controversy exists over whether Rutledge knew of his provisional appointment as ChiefJustice when he delivered his initial sally against the Jay Treaty in Charleston on July 12, 1795, see Vieira & Gross, supra note 13, at 323 and accornpanying notes. The nomination did not becorne public until July 20, and there is at least a good chance that Rutledge was unaware ofWashington's dedsion to nominate him when he attacked the Treaty. 99 While many Federalists were Unot generally enthusiastic about the treaty, [thcyl tended to close ranks and regard any criticism as a betrayal of loyalty to the administration," Swindler, supra note l, at 535. 100 Id. at 536. 101 These were John Langdon; Rufus King, Caleb Strong, Oliver Ellsworth, Alexander Martin and Pierce Butler, Vieira & Gross, supra note 13, at 322 n. 73. AlI ofthe men voted on RutIedge's nomination. 25

the intentions of the Framers.1D2 The Senate campaign against Rutledge was Led by Oliver

Ellsworth, a Framer and the principal architect of the Judiciary Act of 1789.103 According to legal seholar Laurence Tribe, "Ellsworth's opposition to Rutledge finnly established that, right

from the start, those who wrote the Constitution and founded our nation had no doubt that inquiry into a candidate's substantive views was a proper and even essential part of the confirmation process."l04 Yet while there is sorne evidence to suggest that Rutledge was rejected because of rus political views, the weight of the docurnentary evidence contradicts Professor

Tribe's analysis. The historical record indicates that Rutledge was rejected not because of rus opinions about the Jay Treaty, but instead because of legitimate doubts about rus mental fitness.

Concerns about Rutledge's mental fitness stemmed from the nature of rus attacks on the

Jay Treaty. Rutledge's outbursts against the Treaty exceeded the conventional boundaries of political discourse, and were characterized by sorne as "crazy" and "shocking."l05 Less than a week after the nomination became public, Secretary Ranclolph wrote nervously to Washington,

"it is very seriously wruspered, that within these past two months [Rutledgel is believed in

Charleston ta be deranged in rus mind."l06 Four days later, Randolph "''rote ta Washington again, telling him "[tlhe canduct of the intended ChiefJustice is 50 extraordinary that [sorne] conceive it to be a proof of the imputation of insanity."107 One report of Rutledge's speech against the Treaty even maintained that he had hurled "gross invectives against Washington and Jay."lDS

The litany of charges against Rutledge did not end there. ather accounts of Rutledge's

102 Id. at 322. 103 Ellsworth served as a represcntative for Connecticut. On Ellsworth as the "Father of the Federal Judiciary," see TRIBE, supra note 8, at 96. 104 Id. at 96. 105 Quoted in Vieira & Gross, supra note 13, at 323. 106 Secretary ofState Randolph to President Washington (25 July 1787). Reprinted in 1 DOCUMENTARY HrSTORY, supra note 90, at 772. 107 Secretary ofState Randolph to President Washington (29 July 1787). Reprinted in id. at 773. 108 Quoted in Vieira & Gross, supra note 13, at 323. 26 behavior included descriptions of alcoholism,109 financial misconduct,110 and neglect of duty.l11

Sorne of the reports that circulated about Rutledge were no doubt fabrications concocted by supporters of the Jay Treaty,l12 but much ofthe gossip that was circulating canle from reliable sources. Many ofRutledge's close friends, who, like Ralph Izard, "most sincerely hope[d] that the Senate [would] agree to the nomination," were alarmed at Rutledge's precipitous decline.

Izard wrote ta Jacob Read that

After the death of his Wife [in 1792, Rutledge's] mind was frequently so much deranged, as to be in a great measure deprived of rus senses; &[ am persuaded he was in that situation when the Treaty was under consideration.llJ

Read wrote back that the members of the Senate viewed Rutledge as a loose cannon whose conduct threatened to /ltotally destroy all gouvernment [sic] & defeat our representative System intirely [sic]."114 While not all senators felt this \vay, most were greatly concemed by the reports of insanity, dnmkenness and finanda! misdealing that plagued the nominee.11S

Perhaps the best evidence that opposition to Rutledge centered on merit rather than on political philosophy came from Alexander Hamilton. As a prominent Federalist and an ardent proponent of the Jay Treaty, Hamilton had a vested political interest in seeing Rutledge defeated. Despite this, ho\vever, Hamilton believed that Rutledge should not be rejected solely

109 Edmund Randolph to George Washington, 5 August 1787 "reports of [Rutledge's) attachment to his bottle, his puerility, and extravagances, together with a variety of indecorums and imprudendes multiply daily." Reprùlted i11 1 DOCUMENTARY HI5rORY, supra note 90, at 776. 110 Apparently Rutledge's son had to borrow from a local bank to repay his father's debts, see, e.g., " 'A Real Republican' toJohn Rutledge," Columbian Centinel,26 August 1787, id. at 784. 111 According to Senator George Walton, Rutledge's administration of his duties as Chief Justice of the South Carolina 5upreme Court had been 50 poor "that several Grand Juries have presented him for what they thcught Misconduct ofat least Negligence ofDuty," seeJohn Adams to Abigail Adams, 21 December 1795, id. at 816-7. 112 Alexander Hamilton, a principal supporter of the Jay Treaty, was active in the effort to defend the Jay Treaty and to discredit Rutledge. Under the pseudonym Camillus, he wrote several briefs ofthis nature, see, e.g., 'The Defence No. V by 'Camillus,'" id. at 776-7; Vieira & Gross, supra note 13, at 323. 113 Ralph Izard to Jacob Read, 17 November 1795. Reprinted in 1 DOCUMENTARY HrSTORY, supra note 90, .Jt 807- 8. 114 Jacob Read to Ralph [zard, 19 Decembcr 1795. Reprinted in id. at 814-5. 115 5cnatorGeorge Walton ofGeorgia confided to John Adams that he had becn preparcd to vote against Rutledge, but did not arrive in time to do 50, seeJohn Adams to Abigail Adams, 21 Dccember 1795, id. 816-7. Evidence of this kind contradicts the scholarship of Charles Warren, among others, who has maintained that the campaign against Rutledge was a conspiracy of northern Federalists to punish Rutledge for his opposition to the Jay Treaty, see 1 WARREN, supra note 93, at 135. 27 • because of rus position on the Jay Treaty: If there was nothing in the case but [Rutledge'sl imprudent sally upon a certain occasion [Le., his attack on the Jay Treaty,I l should think the reasons for letting him pass would outweigh those for opposing his passage. But if it really be true, that he is sottish or that rus mind is otherwise deranged, or that he exposed himself by improper conduct in pecuniary transactions, the bypass of my judgement would be negative.116

Further evidence that Rutiedge was not rejected for partisan political reasons can be deduced

by examining the composition of support for the Jay Treaty within the Senate. If, as Professor

Tribe argues, the Federalists in the Senate defied President Washington by rejecting Rutledge

because of rus views on the Jay Treaty,117 it would be reasonable to assume that Federalist

Senators feH more strongly about the Jay Treaty than did the President. In fact, the opposite

was true: Support for the Jay Treaty within the Senate was only lukewarm.118 Gruy loyalty to

the administration caused members of the Senate to actively support the treaty. Based upon

this, it makes little sense that the Senate would oppose Rutledge because of his position on the

Jay Treaty, especially since the President himself did not think enough of Rutledge's opposition

to withdraw the nomination.

Rather than confinning, as Professor Tribe has suggested, that "'those who wrote the

Constitution and founded our nation had no doubt that inquiry into a candidate's substantive

views was a proper and Even essential part of the confirmation process,"119 the Rutledge

rejection showed that the judicial selection process was working as it was intended to. The

President was given a wide degree of latitude by the Senate to place men of ms choice on the

bench, while the Senate reserved the right to reject those nominees that lacked the professional

qualifications or mental ability to serve in the nation's highest judicial office. Ifthere was any

doubt that John Rutledge lacked the mental fitness to serve as ChiefJustice, this was erased

116 Alexander Hamilton to Rufus King, 14 December 1795, 1 DocUMENTARY HISTORY, supra note 90, at 811-2. 117 This is at the very least implidt in ProfessorTribe's analysis. As he argues, "[elven the insistence of[George Washingtonl himself was insufficient to overcome the Senate's decision to exercisc independently its power of confirmation," TRIBE, supra note 8, at 96. 118 See supra note 99 and accompanying texte 119 See supra note 104 and accompanying text. 28

shortly after rus defeat when Rutledge attempted suicide by hurling himself off a wharf into

Charleston Bay.

B. Alexander Wolcott

The rejection of Alexander Wolcott in 1811, only the second rejection in the history of the

confinnation process, further reinforces the notion that the Senate admiIÙstered its lIadvice and

consent" function as it was intended to for severaI decades. By the time Justice William Cushing

died in 1810, rus twenty-one years of service on the Court had established a Supreme Court

record.120 To replace mm, President James Madison courted Levi Lincoln, a Massachusetts

lawyer who had been Thomas Jefferson's Attorney GeneraI from 1801 to 1804. Jefferson had

encouraged Madison to nominate Lincoln, a dedicated Republican, to the Court, but Lincoln

(whose heaIth and eyesight were in decline) expressed little interest in serving.12l Convinced he

could change the candidate's mind, Madison subnutted Lincoln's narne to the Senate, where it

was approved, but Lincoln declined as promised.

When \vord of Lincoln's refusai reached Madison, the President nominated .AJexander

Wolcott, a prominent Republican customs collector in Connecticut who was little known on the

national stage.l22 IfMadison thought that Wolcott \vouId glide throügh the confirmation

process as Lincoln had, he was sadly mistaken, for the nomination was immediately

controversiaI. Throughout the country Federalist newspapers lined up to oppose rus

nollÙnation. As the Columbian Centinel recorded,"even those most acquainted with modern

degeneracy were astounded at this abominable nomination. The Senate were appalled."l23 In

the New England Palladium the nominee was similarly abused:

We cannot conceive from what influence such a nomination could arise; that a man, barely qualified to discharge the duties of a justice of the peace in a country town,

120 Cushing had been the third man appointed to the court by Washington. At the time of his death, he was the onlyoriginal member ofthe Court still sitting, HAu., supra note 1, at xl-xli. 121 HAll, supra note 86, at 507. 122 Id. at 935. • 123 Columbian Centitzel (February 1811), quoted in WARREN, supra note 93, at 411. 29 • should be appointed [to the 5upreme Court}.l24 The basis of these venomous attacks, according to historian Charles Warren, was that Wolcott

was despised by the Federalists because of ms Uvigorous enforcement" of the embargo and non­

intercourse laws: "[A]ny active supporter of those measures," said Warren, "would have met

with similar denunciation from the Federalist opposition."l25 Recent accounts of this rejection

tend to reinforce Warren's conclusion, suggesting that the Wolcott nomination was felled

because of the nominee's political or ideological views.126

Yet while Wolcott's political activities did not endear mm to the Federalists in the Senate,

his politcal views were not responsible for his defeat. The Senate at the time of \Volcott's

nomination was composed of 28 Republicans versus only 6 Federalists.127 Considering that

Lincoln had aIready won confinnation, Wolcott was a Republican, and both the presidency and

the Senate were in Republican hands, it should not have been difficult for even a modestly

qualified candidate to surmount any Federalist opposition. But Wolcott's qualifications were

less than modest. In fact, he was manifestly unqualified for the job.I2S Republican members of

the Senate obviously knew this, because only 9 of them voted in favor of confirming their

President's choice.

As the Rutledge and WoIcott nominations demonstrate, the early pattern ofSenate

response to Supreme Court nominees was consistent with the Framers' vie\·vs on judicial

selection. The Senate's rejection of Rutledge and WoIcott does not support the conclusion that

124 The Nerv Ellglalld Palladium (February 1911), quoted in id. 125 Id. at 412. 126 See, e.g., HENRY ABRAHAM, JUsneES AND PREsIDENTS: A POUTICAL H ISfORY 0 FA PPOINTMENTS TO THE S UPREME COURT, 41 (1985); DAVID O'BRJEN, STORM CENTER: THE 5 UPREME COURT IN AMERICANPoUTfCS, 70( 1990). Abraham, white acknowledging the questions about the nominee's qualifications, condudes that "Madison's nomination of Wolcott fe1l9:24 because Federalist scnators, eagerly backed by the press, opposed Wolcott's vigorous enforccment of the embargo and non-intercourse acts when he was U.S. collcctor of customs in Connecticut." O'Brien, while never mcntioning Wolcott spccifically, implicitly endorscs Abraham's view when he wntes "[olnly two nominccs-Gcorgc Williams in 1873 and G. Harold Carswell in 197D-suffered defeat becausc of mediocre judicial records and lack of personal qualification." 127 TRIBE, supra note 8, at 98; Swindler, supra note 1, at 536. 128 Even Laurence Tribe, the most active modern proponent of a broad Senate rcvicw, admits that the Senate • rejectcd Wolcott "becausc he was not up to snuff," TRIBE, supra note 8, at 98. 30 the Framers sanctioned the politicization of the confirmation process or the substantive revie\-v of nominees right from the start. It would have no doubt been possible for the President to secure the nomination of a candidate who shared the political views of Rutledge or Wolcott provided the nominee was mentally and intellectually fit for service.

Instead, what these early struggles point to is a Senate that disposed of its duty in a rnanner consistent with the spirit and the letter of the Constitution. The Frarners intended for the senate ta play a specifie role-to sanction those nominees who were fit to serve, and to weed out those who were unfit. In John RutIedge, the Senate rejected a candidate who, though once a brilliant man, was no longer qualified for service on the Court. In Alexander Wolcott, they rejected a character who was eminently unfit. 31

SECTION III: THE TRANSFORMATION IN SENATE RESPONSE TO SUPREME COURT NOMINATIONS (PART I)

ft is interesting to note that in the Republic's infancy, a nominee was hvice as likely ta

decline ta serve on the Court as he was to be rejected by the Senate.129 This statistic indicates

the Court's low standing in the early years, when the ChiefJustice had to beg for nominees on

more than one occasion.130 Two developments in the history of the country, both unforeseeable

to the Founders, altered this course. The first was the emergence of political parties, which split

the Legislature into two competing groups and made control over the other branches of

govemmentimportant.131 The second was the 5upreme Court decision in lvfarbury v. lvladison,132

\vhich substantially increased the importance ofthe Courtby giving it the po\ver, in ChiefJustice

John Marshall's words, to "say what the law is."l33 As the power of the Court increased, and

129 [n the first 22 years of the Court'5 existence, only two nominees (Rutledge and Wolcott) were rejectcd by the Senate, one nominee was forced to his withdraw his name, and five men dedined ta serve on the court. The first ta dedine was Robert H. Harrison, a Maryland lawyer and judge nominated by Washington (24 Septcmber 1789) to be one of the original six Justices of the Court. Two days after the Senate received the nomination Harrison was duly confirmed, but he was forced to decline because of bad health. The next nominee to decline a commission was Associate Justice William Cushing, nominated to replace ChiefJustice Jay after the Rutledge rejcction. Though he was easily confirmed, Cushing chose ta rernain an Associate also dting bad health as his reason. John Jay becamc the third man to decline il nomination after the Senate confirmed him to replace Chief Justice Oliver Ellsworth in 1800. Jay cited the Court's lack of "energy, weight, and dignity" as his reasons for dcdining. Madisonian appointee Levi Lincoln was the fourth man to decline scrvice after winning Senate confirmation. His poor health and failing eycsight were the reasons. Finally, John Quincy Adams, aiso a Madison appointcc, declined an appointrnent ta the Court in 1811 choosing instead to remain at his job as Minister to Russia. The nominee who was forced to withdraw his name from consideration was William Paterson. At the time of his nomination Paterson was still a membcr of the V.S. Senate. He fcll into the second group of senators in the first Congrcss whosc term expired aftcr four years. \Vhen his nomination was received by the Senate his tcrm had yet to expire, and thus his appointment violated Article l, Section 6, of the Constitution ("No Senator...shaH, during the time for which he was elected, be appointed to any civil office under the authority of the United States .. :'). When Paterson's Senate term expired a few days later, President Washington resubmitted the nomination and Paterson was duly confirmed. 130 The early Court had difficulty attracting nominee's for several reasons: First, the Judidary Act of 1789 mandated that the Justices ofthe Supreme Court serve aiso as judges on the various Circuit Courts. On ail circuits this entailed extensive travel and caused mostJustices great physical hardship. Second, sincc Congress neglected to supply the Court with a chamber, the Justices often met under Iess than ideal conditions, see entries for Circuit Riding and Chambers in HAu., supra note 86. 131 The failure of the Founding Fathers to anticipate the rise of political parties is discussed briefly in Henry Abraham, "A be71ch happily filled:" Sorne Historical Reflections on tire 5upreme Court appointment process, 66 JUOICA1URE 285 (1983). 132 1 Cranch (5 V.5.) 137 (1803). 133 [do 32 as the political divisions in the country widened, control over the Court became increasingly important. Accordingly, political considerations began to affect the Senate's performance of its

IlAdvice and Consent" function. Subsequently, rejections increased dramatically. While many of these rejections were based on partisan politics, and had more to do with the po\\rer struggle being waged between the Executive and the Legislative branches than with the Court itself, the change in the Senate's response to Supreme Court nominations had a significant effect upon the

Court. As partisan politics began to play a greater role in the confirmation process, the Court became a more political body.

A. Appointment Proces5 Takes on Political Coloration

The next President to have the Senate reject a nomination to the 5upreme Court was Jolm

Quincy Adams. Elected in 1824, President Adams successfully nominated Robert Trimble to the

Court in 1826. With Trimble's sudden death in 1828, however, .~dams had a second opportunity to appoint a Justice. Adams chose John J. Crittenden, a former District Attorney from Kentucky. It was a good choice-Crittenden was bright, temperate, and well-versed in the law-but Adams waited too long to make it. Though Justice Trimble had died in August,

Adams did not nominate Crittenden until December.l34 This was a crucial mistake, for Adams lost the intervening presidential election to Andrew Jackson.13s Given that the Senate was composed of a majority ofJackson supporters, it was unlikely that Crittenden was going to receive a fair hearing.l36 The veteran Senator Henry Gay understood this weIl, and warned ms friend Crittenden to "[p]repare for the worst event."137

134 Even if Adams had nominated Crittenden before the election, the Senate, bearing a majority ofJackson men, would have most likely waited until after the clection to consider the nomination. 135 It is likely that Adams either falsely assumed he would gain reelection, or reasoned that the Democratie majority in the Senate would wait until the election to act on any nominations. 136 The Senate composition at the time was 28 Democratic-Republicans versus 20 National Republicans, see Swindler, supra note 1, at 536. 137 Henry Clay to John J. Crittenden, 27 January 1829. Reprinted in Goff, Rejection of 511preme Court Appointments, 5 JOURNAL OF L~ HISTORY 359 (1961). Gay went on to expIain, "I understand that the Senate is considering a general proposai that they will act upon no nominations during the present administration, except in sorne fcwcasesofgreatemcrgcncy." Ironically, Clay was indirectly responsible for Crittendcn's rejection. As a candidate in the election of 1828, Clay attracted significant support away from President Adams and ensured his narrow defeat. Had Adams won, Crittenden 33 • \Vithin two weeks the Senate had postponed Crittenden's nomination indefinitely.13H Though this tactic had never previously been used to defeat a nominee, it served the Senate's

purpose weU. Crittenden was obviously qualified ta sit on the Court, thus Democratic­

Republican senators did not want to vote to reject mm. But Jackson's supporters were aIso not

inclined to ratify the nomination of a defeated President.139 By postponing the nomination, the

Senate avaided rejecting a qualified nominee and preserved a Supreme Court vacancy for the

inconùng President Jackson. The implications of the Senate majority's behavior did not escape

comment, however. Almost irnmediately, the Senate's action was criticized in the Whig press.

"If there are no better reasons for neglecting to ratify or reject this nomination than party

feelings or party politics," "'rote one New York newspaper,

the majority of the Senate must be held responsible to the country for conduct which is unjustifiable in principle and most pernicious in practice. When the highest judicial tribunal in the Nation is made the tool of a party-when a Court, which has been established by the Constitution for the purpose of deciding questions of the highest importance, as it regards the welfare of the Union, the rights and independence of the several States, the interests of individuals and the character of the Nation, is selected for the express purpose of subserving the plans, and prornoting the views of plotting, intriguing, seIfish and arnbitious politicians, the corner-stone of the govemment will be undermined, and the fabric left exposed to speedy destruction.140

Whig politicians also took issue with the postponement. John Chambers, a Congressrnan from

Kentucky, ""'rote to Crittenden, "[w]hat a set of corrupt scoundrels, and what an infernal

precedent they are about to establish."141 As Congressman Chambers predicted, the Crittenden

nomination did indeed establish a precedent. Before Crittenden, none of the 28 nominations

submitted to the Senate were postpaned, and only 2 were rejected. Between 1829 and 1864,

however, the Senate either postponed, or failed to ad upon 8 of 32 nominations {one-quarter

would have most likely becn confirme

• the total). Ifrejections are entered. into the calculations the statistics are even more staggering--overa 35 year period more than one-third ofal! nominees failed to win Senate

-- approval.l42

B. The Intentions O/The Framers Are Lost On The Senate

While the strong leadership of AndrewJackson contributed ta the birth of the modern

Democratie party, President Andrew Jackson's economic program and his hostility towards the

Second V.S. Bank alienated the northern business class and spawned the Whig party as weIl.

As the politicallines demarcating the second party system came into dearer focus, the

politicization of5upreme Court appointments reached. new heights. President Jackson had little

reason to worry about the composition of the Court-not only had rus first three nominees won

confirmation easily, but he had proved in Worcester v. Georgial43 that the Court's decisions

lacked efficacy without the power of his office to back them up.l44 Whigs, on the other hand,

had a real interestin controlling the membership of the Court. In their eyes, President Jackson

had repeatedly violated the Constitution by unlawfully centralizing power in ms office.

Keeping Jackson's men off the Court was one way they hoped to check his power.

When the President nominated Roger Taney ta the Court in 1835, Whigs thus set the

142 From the election of1828 until the assassination of President Abraham Lincoln, 32 nominations were sent to the Senate for approval. Ofthese,5 were postponed (John Crittenden, Roger Taney, Reuben Walw~rth. Edward King, George Badger), no action was taken on 3 Gohn Read, Edward Bradford, William Micou), and 3 were rejected Oohn Spencer, George Woodward. Jerimiah Black), SwindIer, supra note 1 at 536; ~ supra note 1 at :xl-xlviii. While it would he possible to argue that the increased frequency ofrejection during this time period was a result of the medioaity of the nominees, this is not necessarily true as historian Laurence Tribe tells us: "Presidents Tyler and Fillmore compiled their deplorable records of Senate rejections less because the caliber of the nominees was questionable than because the Senate took advantage of the political weakness ofTyler and Fillmore." TRIBE, supra note 8, at t Il. The same can certainly he said ofJohn Adams and Andrew Jackson, both of whose rejected nominees were well-qualified. 143 6 Pet. (31 US.) 515 (1832). 144 Worcester l'. Georgia evolved out of attempts by the state ofGeorgia to assert sovereignty over Cherokee lands that were proteeted by an earlier treaty. ChiefJustice John Marshall wrote for the majority that Indian nations were udistinct political communities, having territorial boundaries, within which their authority is exclusive ... which is notonly acknowledged, but guaranteed by the United States." PresidentJackson aJlegedly responded: IIJohn Marshall has made bis decision; now let him enforce it." 5ince Jackson's policy was widely popular, and the Court obviously lacked the power to enforce its ruling, the Cherokees were forcibly removed to the Indian Territories, HAlL, supra note 86, at 138. 3S

opposition machinery inte motion. Taney was weil known to members of the Senate by the tirne

of ms nomination. As PresidentJackson's Attorney General from 1831-33, he had been

popular. But 1833, the year ofJackson's war \-\-ith the Second V.S. Bank, rnarked a turning

point in Taney's political career. When two Secretaries of the Treasury resigned rather than

accede to Jackson's demand that they transfer federal deposits to state banks, Jackson

switched Taney from Justice to Treasury.145 Taney transferred the money, but since his

appointment had taken place during a Congressional recess he still needed Senate approval.

Angered by what it perceived to be duplicitous conduct, however, the Senate refused to confinn

Taney as Secretary of the Treasury.146 His political aspirations disappointed, Taney returned

to private practice in Baltimore. Shortly thereafter he received a letter frOID President Jackson,

who wrote, UI feel l owe you a debt ofgratitude and regard that l have not the power to

discharge."147 In January 1835, the resignation ofJustice Gabriel Duvall of Maryland provided

Jackson with an opportunity to discharge that debt. It was a perfect fit for two reasons: Taney

was a talented lawyer and fonner Attorney General who possessed goed qualifications for the

position, and, like Justice Duvall, he was from Maryland, \vhich \vould keep the President from

upsetting the regional balance on the Court.l48 Immediately, however, Whigs in the Senate

moved to block Taney's appointment.149 Their chances were at least even, since the Senate was split along party lines. Despite Jackson's best efforts, the Whigs managed ta postpone Taney's nomination on the last clay of session.ISO To be sure Taney never reached the Court, over- zealous senators passed a measure abolishing the vacant Court seat, though the proposallater

145 See id. at 858-9; Goff, supra note 137, at 360. 146 HALL, supra note 86, at 858. 147 Quoted in ABRAHAM, supra note 126, at 100. 148 Bcforc the abolition of drcuit riding in 1891, regionalism played a crucial role in shaping 5upreme Court appointrnents. While a detailed evaluation ofthis phcnomenon is bcyond the scope ofthis thesis, an excellent analysis ofthis factor is contained in Friedman, supra note 1, at 1. 149 Goff, supra note 137, at 360. 150 ABRAHAM, supra note 126, at 100. 36

died in the House.151

Jackson was enraged. Taney's obvious qualifications for the Court were being ignored

because of his loyalty to Jackson during the Bank War. Unwilling to accept defeat, Jackson

vowed to renominate Taney.152 True to ms word, Jackson resubmitted Taney's name on 28

December 1835-0nly this time provided an ironic hNist to the nomination. On JuIy 6, after

thirty-four years, five months, and eleven days as ChiefJustice, John Marshall died in

Philadelphia.153 Jackson intended for Taney to be his replacement. Again the debate over the

nomination was acrimonious. Remembering how Jackson's lieutenants had thwarted John J.

Crittenden's promotion to the Court, Whig leaders Henry Gay and Daniel Webster fought

Taney passionately. When former Vice PresidentJohn Calhoun, now a bitter Jackson opponent,

joined their ranks, Taney's nomination seemed to be in trouble.l54 Despite their best efforts,

however, the Whig-Calhoun axis fell short. When the votes \vere tallied, Taney had won

cqnfirmation eÇlsily.

The tenor of opposition to both Taney nominations suggests that the Senate's role in

judiciaI selection ,"vas undergoing a transformation. While there were sorne \veak. efforts to

undennine Taney's legal qualifications, Whig objections to the nomination centered on Taney's

raIe in Jackson's war \vith the Second V.S Bank. As one opponent of the nomination said,

"[t]he nomination of Taney is made for the sole purpose ofinsulting and degrading the Senate."l55 On a deeper level, Senate opposition to Taney aIso stemmed from concerns that rus support of President Jackson during the Bank. War indicated sympathy for Jackson's views on the limits ofgovemmental power, and aIso on the relative strength of the Executive in the

lSl See Abraham, sflpra note 133, at 291; TRIBE, supra note 8, at 104. 1S2 TRIBE, supra note B, at 100. IS3 HAu.., supra note 1, at xli. IS4 ABRAHAM, supra note 126, at 101. 1S5 Quoted in 2 WARREN, supra note 93, at 13. In the Whig press the nominee was ungcnerously described as a "supple, cringing tool ofpower," NBN YORKCOURlER, 23 January 1836, qlloted in id. at 11. 3ï • American system ofgovernment.156 In addition, the struggle between the Senate and President Jackson was a stuggle over the proper role of the Supreme Court. As Jackson had demonstrated

in the case of ~Vorcester v. Georgia, he rejected the notion that the Supreme Court was the FJlal

arbiter of the meaning of the Constitution. To Jackson, the people reserved power over the

political institutions that they created, not vice-versa.157 Thus by seeking to control which of

Jackson's nominees arrived on the 5upreme Court, Jacksonian opponents in the Senate were

seeking to repudiate the President's limited views on the power ofthe Court. IfWhig attenlpts

to defeat Taney centered on the notion that ms political views would shape rus views on the

bench, hO't-vever, simple partisanship aIso played a crucial role. Even Taney's fiercest

opponents, after the partisan passions of the day had subsided, eventually acknowledged his

qualifications. \Vithin a few years of the nomination, Henry Gay candidly adrnitted how

deeply rus political bias had clouded rus judgement ofTaney. As described by Senator Reverdy

Johnson:

AfterTaney had been upon the bench for sorne four or five years, and Mr. Clay had been the witness, froID having practiced before him and read his decisions, of the manner in which his duties had been discharged, he, as he told me himself, after hearing an opinion deLivered by the presiding Judge, went to his quarters to see mm, and found mm alone; he said he felt the embarrassment necessarily incident to the object of his visit, and after exchanging salutations suited to the occasion, and being about to leave him, he took mm by the hand and said: "Mr. Chief Justice, there was no man in the land who regretted your appointment to the place you now hold more than [ did; there was no member of the Senate who opposed il more than [ did; but [ have to say to you, and [ say it now in parting, perhaps for the last time,-[ have witnessed yaur judicial career, and it is due ta myself and due ta you that [should say what has been the result; that [ am satisfied now that no man in the United States could have been selected, more abundantly able to wear the ermine which Chief Justice Marshall honored."158 156 Indeed, the struggle over the Second us. Bank was largely about the properscope and function of the federal government. In President Jackson's veto message, delivered on July 10, 1832, he indicated that the "powers and priviIeges of the existing bank are unauthorized by the Constitution ...." In reply, Whig leader Daniel Webster referred to President Jackson's veto of the Bank Act as an effort to "destroy the most useful and most approved institutions ofthe government." Webster further wrote that "sorne are found openly to question the advantagcs ofthe Constitution itsclf; and many more rcady to embarrass the exercise of its just power, weakcn its authority, and undermine its foundations." Both Jackson's veto message and Webster's responsc arc reprinted in MAJOR PROBLEMS [N 1HE EARLY REPUBuc, 1787-1848,385-391 (Sean Wilentz, ed.) (1992). 157 For a detailed look at President Jackson's political philosophy, see ROBERT REMINI, ANDREW JACKSON AND THE COURSE OF AMERICAN OEMOCRACY, 1832-1845, 337-345, reprinted ill id. at 399-407. 158 38th Cong., lst Sess., 1363, speech by Senator Reverdy Johnson, March 31, 1864. Reprinted itz 2 WARREN, supra note 93, at 15-16. 38

• Had the Senate succeeded in blocking Taney because of narrow political calcuIations, the nation would have been deprived of the service of a well-qualified jurist.159 The case ofJustice Taney

thus provides a clear illustration of the problems associated with the Senate's growing power

over judiciaI selection. c. Tyler Fails To Nominate In Five Attempts JOM Tyler became President by an accident of history, but it was surely no accident that

five out ofhis six Supreme Court nominations were rejected by the Senate. During his tenure the

frequency of rejection for 5upreme Court nominees reached its highest level, paralyzing the

Court and rnaking Tyler'sone term presidency a case study in the hazards of politicized

confirmation proceedings.

As William Henry Harrison's running mate, Tylercompleted the uTippeeanoe and Tyler

T00" ticket. Yet despite rus presence on their national ticket, Tyler's name was anatherna to

rnost Whigs. Though 1840 marked the second time that Tyler had been nominated as the

party's candidate for Vice President, Whigs instinctively distrusted this conservative Demacrat

tramVirginia.160 When President Harrison's unexpected death left Tyler as the nominal leader

ofthe VVhig majority in Congress, Whig leaders in Congress questianed how committed the new

President would be to their legislative program. Tyler's decision te adopt President Harrison's

Cabinet gave the Whigs hope, but this saon proved to be misplaced when Tyler demonstrated

that he intended to limit the government te functions that had distinguished it during the

Jeffersonian age.l61 Within a few weeks, Whigs in the Senate quickly abandoned the

adnùnistration and rallied around Henry Gay. In the meantime, the Democratie majority in the

159 Despite his infamous opinion in the Dred Scott case, ChiefJusticeTaney has consistently becn fdnked as one of the nation's rnost talented justices, see e.g., BLAUSTEIN & M ERSKY, supra note 1, which devotes an entire chapter to the ranking ofjudges. See a/so HAll., supra note 86, at 707-8. 160 Tyler had broken with his party because the strong nationalist tendencies of]acksonian Democraey disagrced with his states' rights sensibilities. This factor did not endear him to the Whigs, OiARLES A. BEA.RD and DETLEV VAGrS, THE PREsIDENTS IN AMERICAN HISTORY, 45 (updated 1989). • 161 Swindlcr, supra note 1, at 537. 39

House remained hostile to Tyler, making him a President without a party. Within a few months

Tyler's Cabinet collapsed, leaving his administration in ruins.162

Over the next severa! years, as the gulfbetween President Tyler and the Whig majority in

the Senate widened, Tyler's chances ofbeing renominated for President by the Whig party

evaporated. Recognizing this fact, President Tylerbegan to curry favor with the Oemocrats.

When Justice Smith Thompson died in December, 1843, Tyler sought to elevate Martin Van

Buren, rus primary eompetitor for the Democratie presidential nomination, with a seat on the

5upreme Court.163 But Van Buren, who saw through Tyler's ploy, was ill-disposed ta give up

162 AIl but one of Harrison's former Cabinet officers resigned in the wake of a disputed banking bill. The only cabinet member not to resign was Secretary ofState Daniel Webster, who stayed on unti11843, BEARD, supra note 160, at 197-8. 163 The story was related ta Van Buren in a letter by SenatorSilas Wright of New York.: u • •• Vou have been made a candidate for the vacancy upon the bench of the Supreme Court, for a week past, and for a portion of this time your prospects have been said to be decidedly promising-better even than those ofour friend Spencer. Vou must not suppose me as attempting to hoax you or to play off a joke upon you. ram tellmg you the mere truth, and for the last weck and a half, rexpect your nomination to us as an Associate Justice of the S.C. ofthe U.5. The first intimation of this sort which came to me was from General Mason of Michigan, the father of the late Gov. Mason, whom you doubtless know very weIl. He called upon me very diplomatically and broke the subject to me in the mostsolemn and formaI manner. 1 can usually keep my face when rtry hard to do 50 and have any waming that the effort will be required, but this took me too much by surprise and 1 did not succeed at aH, but met the suggestion by a most immediate fit of laughter. Seeing that this annoyed the General more than 1could suppose it ou~ht, the idea at once occurred to me tfiat he had becn sent to me from a high quarter. 1atonce changea my mannerand left him at liberty to talk on-I discovered too that he had a carnage at the door, and apologized for detaining him and leaving his driver exposcd to the storm, for [ ttùnk he had sat an hour and it rained and blew most violcntly. He said that was ofno consequence and remained, rthink, for full another hour. [told him very gravely that 1was sure you would not seek, or accept, the place, if your name had not been and was not to be connected with the Presidential election at aIl, and 50 believing 1 must suppose you would be compelled respectfully to decIine the offer, if made, situated as you was, but really treated the manner decorously. This seemed to please him, and he talked very freely, professed to be strongly your friend, but was perfectJy convinced you could not be electedPresident, ifnominated; and wnat was more sagaàous, entertained quite as deep a conviction that the consequence ofyour appointment as Judge would be my nomination for president with the certainty of an election. [asked him very gravely if Mr. Tyler thought as he did upon that point, and then he said he had not seen, or conversed, with Mr. Tyler upon eithersubject, but he kne10 thatyour name had been presented to him, as a proper one to be used in his nomination ofJudge, and that too bysorne ofyour œst friends. fn the course ofthe conversation, he often askeâ me if1thought either you, oryour friends, couJd look upon your nomination by the President as an act of hostility to you or as an attempt to degradc you, and whether, if you were nominated, your friends in the Senate and even 1could vote against you, and he seemed anxious to have my answers upon those points. 1finally told him that to propose a man for a place upon that elevated Bench, and thus procIalm ta the country his fitness and that by a political opponent, could not be tortured into an act of hostility; that no man in this Country was 50 high as to be authorized to feel himself degraded by the offer of such a position, and that [ certamly could not vote ta reject your nomination for such an office. These replies seemed to ddisht him, and his answer was 9uick and triumphant with deep laughter; ''VOU are right, you are rignt, you can't vote against him.' At length, rising to go, he asked me what upan the whole, f though ofthe proposition. 1 replied, very steadily Jooking him in the face: "Tell Mr. Tyler from me tnat if he deslred to give the whole country a broader, deeper, heartier laugh than it ever had, and at his own expensc, he can cffect it by making that nomination." This did not seem to please him, and he Ieft at once. rlaughed myselfalmostsick, not entertaining a doubt, as [ do not now, that the Capt. had sent him to me. Still, [ kept the communication wholly ta myself, only getting my wife to help me keep it and to help me Iaugh, and did not hearanothcr word upon the subJect for two or three days, when ail • at once the matter oecame one of public notoriety, and conversation and laugh; and since that time 1 40

his presidential bid.

Disappointed, Tyler nominated his second choice, his loyal Cabinet member, John C.

Spencer. InSpencer, President Tyler had found an individual whose nomination the Whigs

found particularly obnoxious. In ms earlier days, Spencer had led the anti-Oay faction of the

Whig party, and he and Gay disliked each other immensely.164 In addition, Spencer had been

very critical ofthe President before accepting successive postings in rus Cabinet, thus allowing

ms opponents ta paint lùm as a political opportunist. As one Whig wrote derisively ofSpencer,

"1 have no confidence in the political integrity of Mr. Spencer .... He was always the first to

foist himself ioto any political party which could give him hopes ofprefennent."165 Based upon

judgements of this sort, Spencers nomination was rejected 26-21.166

Tyler next sent the name of Reuben H. Walworth to the Senate. A former U.5.

Representative from Ne,,,, York who had served concurrently as a judge on the Fourth Circuit

Court of Appeals, Walworth now held the position of Chancellor of New York State. During

ms impressive career, Walworth had displayed a keen understanding of the law, prompting ms

friend Judge William Kent to observe "[n]o court was ever under the guidance ofa judge purer in

character or more gifted in talent."167 Before the Senate could vote on Walworth, however,

Justice Henry Bald~in's death created a second vacancy on the Court. Tyler attempted ta fin

the spot with future President James Buchanan, but Buchanan declined. Tyler's second choice,

the prominent Pennsylvania DemocratJudge Edward King, accepted the nomination. ''Vith the

have it from Davies, who gets his news from Parmelee, that the President has been, upon various occasions, determined to send your name, and has considered the movement one of the most happy which ever occurred to a statesman, and that his friends had had great trouble to keep him fiom doing it. My information of yesterday, however, is that your prospects are at an end and that S~ncer'sname will be given to us tomorrow. Van Buren Papers MSS. Letter from Wright to Van Buren (2 January 1844). Reprinted in l WARREN, supra not~ 93 at 108-110. 164 Swindler, supra note 1, at 537. 165 John J. Crittenden Papers MSS. Erastus Root to John J. Crittendcn, 3 February 1844. Quoted in 1 WARREN, supra note 93, at 111. 166 HAlL, supra note 1, at xlii. 167 Goff, supra note 137, at 361. 41

1844 presidential election just around the corner, however, the chances for success were slim.168

Predictably, the Whigs in the Senate were unwilling ta acton King's nomination, postponing

consideration of it on June 15, 1844. Sensing that defeat was imminent, Tyler withdrew

Walworth's name from consideration two clays later.169

Tyler now settled in ta wait for the Presidential election that fail. Without a military hero

of Harrison's stature to oppose him, Henry Gay easily won the Whig nomination. On the

Denlocratic sicle, Tyler never had a chance. Martin Van Buren attempted to win the nomination

for a third time, but in the end fonner Tennessee Governor James K. Polk emerged as the

Democratie nonùnee. ft was a wise choice, for Polk managed to defeat the powerful but aging

Gay handily.170

With the political will of the Whig majority in the Senate now broken, Tyler resumed his struggle to fill the vacancies on the bench. In December he resubmitted King's name to the

Senate, but the Wlùgs refused to act upon it. Undaunted, Tyler now selected Samuel Nelson, a

Jacksonian Democrat and an eminently qualified Judge, to 611 Thompson's seat. Three days later, Tyler nominated John M. Read, a well-respected Philadelphia lawyer with ties ta both parties, ta replace Justice Baldwin. With the support of the Democrats in the Senate, and with only scattered and unorganized Whig opposition, it took just ten days to confinn Nelson ta a seat that had been vacant for fourteen months. When the Twenty-Eighth Congress ended without taking any action on the Read nomination, however, Read's hopes of reaching the V.S.

Supreme Court were dashed.l 71

Tyler's failure to secure the nonùTIation of 5 of 6 5upreme Court nominees set a record failed appointments that no President has matched. Tyler was at least partIy ta blame for this,

168 Because they expected Clay to win the election, the Whigs in the Senate were determined to keep the two vacant Supreme Court seats empty. ft was widely acknowledged that upon his election, Clay intended to place his lieutenant in theSenate,John J. Crittcnden, on theSupreme Court, 1 WARREN, supra note 93, at 116. 169 HAll... supra note l, at xlii. 170 The popular vote was very close, with only 38,000 of the 2.7 million votes cast separating the two candidates. In the electoral coUege, however, Polk won easily, securing 170 ofa possible 275 votes, BFARD, supra note 160.. at 198. 171 ABRAHAM, supra note 126, at 107. 42

since several of his nominations refiected crass attempts to win political advantage for himself

by manipuIating the judicial selection process. Tyler's intentions notwithstanciing, the real story

behind the President's failure to confirm his nominees was an underlying shift in the Senate's

response to Supreme Court nominees. The weakness of the Executive enabled the Senate to

establish itself as the President's equaI in the appointment process. ft has been widely

acknowledged by scholars that Tyler's nominees to the Court were men ofcharacter and

demonstrated legal ability.172 The Senate's rejection of these men cannot, therefore, be blamed

on the quality of the nominees. Instead, Tyler's weakness as a President who lacked any

political base in the Senate made it easy for senators to reject rus nominees without fear of

reprisai. Under such conditions the Senate elevated its standing to a co-equal role with the

President.

The Senate's action was not without its costs, however. In the aftermath of the Tyler

Presidency, Justice Joseph Story was sa despondent that he considered resigning.l73 In a letter

to fellow Supreme CourtJustice John McLean, Stary wrote: UMy heart sickens at the profligacy

of public men, the low state of public morals, and the utter indifference of the people ta all

elevated virtue and self-respect. They are not only the willing victims but the devatees of

Demagogues."174 UI now believe," Story later wrote, "that we are too corrupt, imbecile, and

slavish, in ourdependence upon and under the auspices ofDemagogues, to maintain any free

Constitution, and we shall sink lower and lower in National degradation."l75 While Story's

thoughts about resigning were the result ofsevera! complex factors, the corrupt nature of

politics and politicians during the Tyler era contributed significantly to rus thought proces.176

172 See supra note 142 and accompanying texte 173 JUSrlCES OF 11-Œ UNITED STATES SUPREME COURT (Leon Friedman & Fred lsrael, eds.) 44. 174 faim McLean Papers MSS. Joseph Story to John McLean, 16 August 1844. Quated in l WARREN, supra note ':13, at 139 n. 2. 175 faim McLean Papers MSS. Joseph Story to John McLean, 23 November 1844. Quoted in id. 176 Story's cornrnents must be qualified, for he was bitterly disappointed after the Whig loss in 1844. It appears as though Story felt increasingly isolated on the Court, as a letter he wrote to Clay after the election indicates. In the letter Story expressed his regret over the fact that the Whigs would be denied the opportunity to fill the two vacant Supreme Courtseats, and after further contemplation he even considered postponing his resignation until after the next • election in the hopes that a Whig would fill the vacaney, CARL B. SWI5HER, 5 HISTORY OF THE S UPREME COURT OF THE 43

D. Justice's Seat Remains Vacantfor Twenty-Seven Atfontlzs

Unlike rus predecessor, President James K. Polk was in no hurry to fill the vacancy left by

Justice Baldwin's death. During the opening weeks of rus administration, Polk focussed rus

attention on political appointments, the tariff question, and the annexation ofTexas, ignoring

the empty seat on Court. In the meantime, however, Polk was being lobbied by advocates fronl

Pennsylvania and Ne\\!- Jersey, who each claimed the right to representation on the Court.l77

One such advocate was James Buchanan, the former Pennsylvania senator \vho was now

serving as Polk's Secretary of State. On September 29, 1845, Buchanan met with Polk to make

the case for rus appointment to the Court.l78 Avoiding the direct approach, Buchanan

concocted a story, \vhich though based upon the truth, \vas meant to secure rus nomination to

the Court through subterfuge.179 Polk saw through Buchanan's renlarks, however, writing in rus

journal that "it was manifest froID the whole tenour of the conversation that Mr. Buchanan was

very desirous to go on the Bench."180 Six weeks later, however, before Polk had taken any

UNITED STATES: THETANEY PERIOD, 1836-64,222 ([he Oliver WendeH Holmes Devise)[hereinafterTHE TANEY PERIOD/ Though his opinion was motivated by Whig partisanship, 5tory's depression over the state ofthe union, and that of the Court, is indicative of the decIining stature of the Court which was brought on, among other reasons, by the conductoftheSenateoverSupremeCourtappointments. 177 Originally, the Judiciary Act of 1789 divided the country into three Circuit Courts, each of which represented several states. In 1837, Congress, r~sponding to the proliferation of new states, passed the Judiciary Act of 1837, increasing the number ofcircuit.. to nine. UntiI1869, the courts were staffed by district court judges and U.S.Supreme Court Justices riding circuit. While this system remained in effect, regional considerations played a major role in the appointments process--each circuit required adequate representation on the 5upreme Court. Farexample, aH three men nominated to replace Justice Smith Thompson, who rode on the First Circuit, had come from his home of New York. Similarly, the men who Tyler nominated to replace Justice Baldwin of the Third Circuit represented Pennsylvania, Baldwin's home statc. However, when Polk bccame President, advocates from New Jersey, which \Vas also on the Third Circuit, attempted to persuade him to nominate Trenton's Peter D. Vromm, a former Govcrnor and v.s. Representative from that state. Though NewJersey had not been represented on the Court sincc the death of William Paterson in 1806, Polk, like Tyler, insisted upon a candidate from Pennsylvania. On the Judiciary Acts of 1879, 1837, consult HALL, supra note 86, at 472,475. For more on the effort to nominate Vroom to the Court, see SWI5HER, supra note 176, at 225. 178 The details ofthis meeting are reported in id. at 225-7, which forros the basis for what now follows. 179 Buchanan explained to the President that though he had long preferred a seat on the Court to any position in government, he had not been offered such a position under terms he could accept. Buchanan then told Polk that he was fearful of rus inability to marshaH the support of the Pennsylvania delegation in Congress bchind the President's tariff program. In the evcnt that this happcncd, he reasoned, his position in the Cabinet would undoubtedly be a great source ofembarrassment ta Polk. Therefore Buchanan told the President that if he wanted to avoid the possibility ofsuch an embarrassment, he could preempt it byappointing Buchanan to the Court, id. at 226. 180 1 DIARY OFJAMES K. POLK, 47. Quoted in éd. at 226. 44

action, Buchanan withdrew rus request to be nominated. He would rather be ChiefJustice than

President, he told POlk.1 8l In fact he was secretly dreaming ofthe presidency.

Having abandoned the prospect of nominating Buchanan to the Court, Polk now set out to

find another nominee. Buchanan urged him to renominate John M. Read, but Polkdemurred in

favor ofa nominee whose views on the Constitution comported with ms own.182 Polk. decided

on George W. Woodward, a minor state court judge from Pennsylvania. Polk had good reason

to assume that Woodward would be confinned easily: Not oruy was Woodward a loyal

Democrat, butJustice Baldwin's seat had been vacant for more than eighteen months.

Unfartunately for the nominee, however, the nomination became caught in the crossfire ofintra- state political rivalries. The scales were tipped against Woodward by a Simon Cameron, a senator from rus home state, who invaked the longstanding privilege ofsenatorial courtesyl83 ta challenge the nomination.l84

181 Had Chief Justice Taney vacated his office by death or resignation during Polk's term in office, it is questionable whether the President would have considered Buchanan for the post. Polk was especially dose with JusticeJohn Catron-a Jackson appointee from Tennessee who was instrumental in Polk's election-and would likely have chosen him to succeed Taney. This conclusion is supported bya letter writtcn to Justice McLean by Richard Peters, the former reporter of the Supreme Court. On 6 December 1844, after Polk's election, Peters wrote to McLean, "May heaven in its tenderest mercy preserve the life ofourgood ChiefJustice. Catron will succced him, if he should, while Polk is President, be called ta a better world,"id. at 224. 182 [do at 226. 183 The custom ofsenatorial courtesy dates back to the earliest days of the Republic. Basically, this practice is a defensive mechanism that was introduccd by scnators in the first Congress to prevcnt the appointrnent of their politicaI enemies to high level federal positions. In practice it works like this: If the President nominates a person whom the home-statc senator finds "personally obnoxious," that senator may invoke Senatorial Courtesy to defeat the candidate. This custom is almost always honored by members ofthe Senate, provided that the senator belongs to the sarne political party as the President. The first known instance of senatorial courtesy occurred in 1789, whcn both senators from Georgia opposed the nomination ofBenjamin Fishbourn, who had been selected by President Washington to serve as a naval officer in the port ofSavannah, HAll., supra note 86, at 771-2.

184 The circumstances surrounding Woodward's rcjection arc very interesting. Simon Cameron, the prindpal architect ofWoodward's Supreme Court defeat, had recently been elected over Woodward to the Senate seat vacated when James Buchanan joined Polk's Cabinet. Though Woodward had been chosen by the narrow Democratie majority in the Pennsylvania legislature to succeed Buchanan, when Cameron crossed party lines and solicited the aid of th~ Whigs it was he, and not Woodward, who became Pennsylvania's next senator. James G. B1aine later wrote that it was because ofthis that"[tlhe President endeavorcd to heaI Judge Woodward's wounds by placing him on the bench ..." But whether or not this is truc, it is apparent that Senator Cameron invoked senatorial courtesy against the Woodward nomination. Woodward's defeat cannot be ascribed solely to the opposition ofSenator Cameron, however. James Buchanan, whose own choice, John M. Read, had been passed ovcr by the President, contnbuted to Woodward's defeat as weil. Buchanan not only failed, in ward or in deed, to support the Woodward nomination, but may have convinced sorne of his friends in the Senate to join the Whigs in opposing the nomination. Whether or not this occurred, President Polk 45

While Woodward's name languished in the Senate, Polk attempted to steer another

nominee through its rocky shoals. During the fall of 1845, the lastsurviving member of the

Marshall Court, Associate Justice Joseph Story, died.l85 Story's death provided the President

with a unique opportunity to alter the balance of the Court by replacing a conservative Whig of

the old aristocratie arder "vith a dyed-in-the-wool Jac1

Woodbury, a former superior courtjudge, Governor, u.s. Senator from New Hampshire, and

Cabinet officer to both Jackson and Van Buren.l&> The choice was a good one, widely hailed by

Democrats, and Woodbury was duly confirmed by the Senate on the third day of 1845. Three

weeks later, on January 22, the opposition of Senator Cameron led the Senate to reject George

Woodward.lB?

By now the Baldwin seat had been vacant for over a year and a haIf. Secretary of State

Buchanan again expressed interest in being nominated, but Polk, who evidently "vished

Buchanan to remain in his CUITent post, did not act.l88 Instead, ignoring both the nineteen

month vacancy on the Court and the huge accumulation ofbusiness on the Third Circuit, Polk

said nothing on the subject for several months. When Polk finally recommended Pennsylvanian

Robert C. Grier to the Senate, in August 1845, Justice Baldwin had been dead for more than two

years. This fact seems to have weighed upon the Senate, for it confirmed Grier in only one

day,189 but tItis did little to mitigate the fact that the Court had been disabled for several years.

E. Appointments and the Court in the Years Leading up to the Civil War

The frequency ofconfirmation for Supreme CourtJustices improved slightly during the suspected as much, and relations between he and Buchanan were strained for some time afterward, 5WISHER, supra note 176, at 227-8. 185 Story's 10s5 was feft throughout the nation in a way that transccnded the divisions of both party and section. ChiefJustice Tancy, a Southcrn Oemocrat, said of the Massachusetts Whig Story, "(t is here on this bench that his rcal worth \Vas best understood, and it is here that his loss is most scverely and painfully felt," 1 WARREN, supra note 86, at 142. 186 HALL, supra note 86, at 937. 187 The vote was 20-29, Swindler, supra note 1, at 536. 188 SWISHER, supra note 176, at 228. 189 HAlL, supra note l, at xlii. 46 • 1850s, but the balance of power over appointments continued to shift in the Senate's favor. PresidentTaylor's death less than halfway through bis presidency vaulted the Vice President

into the White House for only the second time in American history. If the Tyler presideney was

an accurate yardstick, however, when it came to confinning Supreme Court Justices, President

Millard Fillmore had ms work cut out for him.

In the early going, President Fillmore defied the Tyler legaey by securing the confirmation

ofBenjamin R. Curtis, a Harvard Law graduate recommended by Secretary ofState Daniel

Webster.l90 By the time Justice John McKinley died in the summer of 1852, though, the sectional

tensions that were to UIÙeash the Civil War had split the Whig party in two. The split came

over the Compromise of 1850, a measure that deaIt with the issues raised by westward

expansion and slavery.l91 Northem Whigs opposed the measure primarily because of the

onerous Fugitive Slave Law, while most southern Whigs supported it. As the President ofa

divided party, Fillmore was in an impossible position: If he opposed the legislation, he was not

being faithful to the interests of rus southern Whig constituents, but if he supported the

compromise, he would clearly run afoul of the more powerful northem bloc ofWhigs. In the end

the President supported the proposai, but at a high price: Northern Whigs abandoned the

President in draves, negating the possibility ofa second Fillmore tenn.192

The deep split within the Whig party meant that Fillmore could not rely on party unity to

190 HAll, supra note 86, at 21l. 191 The Compromise of 1850 was a legislative package drafted by Whigs Daniel Webster and Henry Clay and Democrat Stephen A. Douglas to address the issue ofslavery in the territories. The Compromise of1850: 1) Admitted Califomia as a free state. 2) Organized New Mexico as a territory on the basis of popular sovereignty. 3) Organized Utah as a territory, also under popular sovereignty. 4) Abolished the slave trade, but not slavery itself, in Washington, D.C. S) Enacted the Fugitive Slave Law, which established severe federal punishment for obstructing the efforts of slaveholders to recover theirslaves in any state, and made the federal government responsible for recapturing and returning runaway slaves who had escaped to free territories. Though Webster and Clay had been the prindpal architects of this compromise, most northem Whigs opposed it and objected to President Fillmore's support of the proposais. The opposition of northern Whigs dramatically effected Fillmore's effectiveness as President and preduded the possibility that he would be renominated as the Whig candidate in 1852. 192 BEARD, supra note 160, at 57. 47

aceomplish anything in the Legislature. In addition, the chances offuture Whig electoral

successes seemed bleak, further weakening the possibility ofcooperation.193 In the Senate,

where the Democrats enjoyed a comfortable majority, the future of the Whigs looked quite

feehle indeed. Thus when Fillmore submitted the name Edward A. Bradford, a respected

Louisiana lawyer, to replace Justice John McKinley, Democrats in the Senate declined to act

upon the nomination. Two months later, Democratie predictions were fulfilled. The Wlùgs

were soundly defeated in the presidential contest, and the Democratie majority in the Senate

rose from 22 to 38.194

Fillmore's chances for a successful nomination were now considerably weaker, though the

President remained \\rillfully ignorant of this facto Thinking, perhaps, that the Senate would not

reject one of its own, the President submitted the name of North Carolina Senator George

Badger. Immediately, however, southem senators criticized Badger's support of the Wilmot

Proviso,195 while Free-Soilers scomed him for being too sympathetie to the proslavery cause.196

Badger was also opposed by senators from Alabama, Louisiana and 1vfississippi because he

resided outside the Fifth Circuit.l97 In the end not evensenatorial courtesy was enough to save

the nomination. On February Il, 1853 the Senate voted 26-25 to postpone the nomination

indefinitely.l98

The President next tried to persuade Judah P. Benjamin, a prominent Louisiana attorney,

193 ln 1852, the Whigs nominated General Winfield Scott as their presidential candidate. Scott took no public position on any issues, and thus the Whigs were able to conduet separate campaigns north and south of the Mason­ Dixon Hne, as they had done in 1848. This time, however, southem Whigs repudiated Scott for his failure to embrace the Compromise of 1850. In the North, the influential Whig leader Daniel \oVebster refused to support Scott and pronounced the disbandment of the Whig party. As a result of these divisions, the Whigs were soundly beaten in the election of 1852, carrying only four of thirty-one states CMass., vr., KY., Tenn.,). Although the election had been far doser than the eleetoral vote indicated, the Whigs suffered a sever psychological blow after the election and never again wilged a national campaign. 194 Swindler, supra note 1, at 538. 195 Introduced by David Wilmot, the Free-Soil Democrat from Pennsylvania, the Wilmot Proviso simply provided thilt the federal govemment would prohibit the expansion ofslavery into any territory acquired from Mexico. 196 2 WARREN, supra note 93, at 243. 197 SWISHER,supra note 176, at 240. 198 Swindler, supra note 1, at 439. 48

to allow ms name to go up to the Senate. But Benjamin, who had recently been elected to the

Senate, had no desire to throw his fate to the shifting political winds. Instead he encouraged

Fillnlore to nominate his law partner, William C.ivlicou.l99 By now, however, it was obvious

that IlAdvice and Consent" was, as historian William 5windler has noted, Ila simple matter of

party lining."200 When Fillmore's tenn ended on March 4, lvficou's candidacy ended with it,

clearing the way for President Franklin Pierce to successfully nominate Alabamian John

Archibald Campbell.

In just over a generation the Senate's role in the confinnation process had undergone a

fundamental transfonnation. Earlier in the century, individual Presidents had been given wide

latitude in selecti.ng Justices with only rare interference frOID the Senate. By the late 1840s and

early 1850s, however, as the question of slavery came to dominate the political stage, political

considerations became part of the Senate's evaluating process for Justices. This development

did not augur weIl for the Supreme Court, for as the process for selecting Justices became

politicized, those charged with the task ofjudging were tempted to view their raIe as a political

one.

F. The IJDred Scott" Decision

In the years leading up to the Civil War, as the distrust between North and South

mounted, the possibility of a politically brokered solution receded. Though the Compromise of

1850 briefly preserved the delicate political balance in the country, the second party system collapsed eventually under the weight of the Fugitive Slave Act.201 With the passage of the

Kansas-Nebraska Act in 1854,202 reinvigorated antislavery forces founded a new political party, the Republicans, but violence had already replaced discourse as the primary means of conflict resolution. During the summer of1856, a proslavery gang several hundred strong

199 l WARREN, supra note 93, at 245. 200 Swindler, supra note l, at 539. 201 See supra note 19l. 202 The Kansas-Nebraska Act organized the two territories on the basis of popularsovcrcignty. 49

sacked the Free-Soil town of Lawrence, Kansas. Soon after, New York abolitionist John Brown,

together with his four sons, respondedby murdering five proslavery settlers in neighboring

Pottawatomie, Kansas. Eventually this violence spilled over into the Congress, where Senator

Charles Sumner was beaten savagely with a cane on the Senate floor by Congressman Preston

Brooks, whom Sumner had criticized for ms support ofslavery. In this charged environment,

11.either the Executive nor the Congress had the full trust of the people. Only the Supreme Court,

it was thought, could bring about a peaceful solution ta the problems facing the country.203

As events would prove, the public's faith in the Court was badIy misplaced. After years

of politicized confinnation proceedings, the Court had become a very political body. This

became evident when the Court finally addressed the slavery question in Dred Scott v.

Sanford. 204 Writing for the majority, ChiefJustice Taney's principal arguments-that blacks

were not citizens of the United States, and that Congress lacked the authority to prohibit

slavery in the territories205-removed the slavery question from the political and legal arena and

hastened the decline into civil war.206 In the North, observers pilloried the decision as a flagrant

abuse of judicial po\ver.207 Notwithstanding the question ofwhether the Dred Scott decsion was

an abuse of judicial power, it is telling that a question of such vital national importance was left

to the least democratic branch ofgovemnlell.t to decide. It would be decades before the

203 This view was held by several of the Justices themselves. ln his concurring opinion in the Dred Scott case, Justice James M. Wayne of Georgia argued that "settlcment ... by judicial decision" was integral to the "peace and harmony ofthe country." Dred Scott v. Sanford, 60 US. (19 How.) 455. Quoted in Friedman,supra note l, at 5. 204 60 U.S. (19 How.) 393 (1856). 205 Because each Justice wrote his own opinion, there has been sorne historical controversy over what the Court's actuaI holding was. However, as one historian has written, despite the various opinions "there can be no doubt that Taney's opinion was accepted as the opinion of the court by its critics as weil as its defenders .... As a matter of historical reality, the court decided whatTaney dedared it decided," B. SCHWARTZ, FROM CONfEDERATION TC NATION: THE AMERICAN CONSTITUTION, 1835-1877 at 333-4 (1973). Quoted in Friedman, supra note l, at 6 n.14. 206 Lino A. Graglia, The Growth of National flldicial Power, 14 NOVA L. REV. 63 (1989). Similarly, Professor Schwartz has argued that with Dred Scott, "collapsed the practical possibility of rcsolving by political and legal means the issues which divided the nation," Schwartz, supra note 205, at 130. Quoted in Friedman, supra note l, at 6. 207 Friedman, supra note l, at 6. In 1865, the year afterTaney's death, Charles Sumner opposed an appropriation for a bust of the ChiefJustice, telling senators: ''The name ofTaney is ta be hooted down the page of history .... He • administered justice at last wickedly, and degraded the judidaryofthe country, and degraded the age," id. 50

5upreme Court would recover from this "self-inflicted wound."20B

208 This phrase was given currency by Charles Evans Hughes, see id. at 6 n.7. 51

SECTION IV: THE TRANSfORMATION IN SENATE RESPONSE TO SUPREME COURT NOMINATIONS (PART 2); RECONSTRUCTION AND BEYOND

During the Reconstruction era, a new highwater mark in the political coloration of5upreme

Court appointments was reached. Severa! factors contributed to this development. First, the

Dred Scott decision becarne somewhat of a self-fulfilling prophecy: If the Court wanted to act like a legislative body, it would he treated as one. A second factor, closely linked to the first, was the Court's behavior during the Civil War. Though the war dearly shifted the focus away fronl the confirmation process and pointed a spotlight at the constitutionaL pressures induced by the sectional conflict, the Justices' limited view of presidential power during wartime \von the

Court few admirers on the Union side. Finally, during Reconstruction, Radicals in the Congress were determined to enact an arnbitious agenda over the protests of the Judiciary, bringing these two branches of governrnent into conflict. Taken together, these factors provided the rationale for greater senatorial control over appointments, and after the war this sparked a conflict that was \vaged upon the battlefield of Supreme Court appointments.

A. The Court During the Civil War And Beyond

From the outset of the war, Abraham Lincoln took a broad view of rus powers. As the

President of the United States, he intended ta preserve the Union at any cast. Towards that end, many of the limits President Lincoln imposed upon civilliberties during wartirne were, as

historian Richard Friednlan explains, lIof dubious constitutionality."209 Yet while most northerners accepted the President's extralegal behavior lias necessary to save the Union," the

Justices of the Supreme Court were unwilling to tolerate encroachrnents upon the Constitution in the service of that or any other goal.210 This conflict exacerbated existing tensions, and made a showdown between these two branches ofgovemment increasingly likely as the war prcgressed.

The first major confrontation came over the Ex parte Merryman case.211 Jolm. Merryman

209 Id. at 7. 210 Id. 211 17 FED. CAS. 144 (C.C.D. MO. 1861) (No. 9487). 52 • was a pro-Confederate politicalleader in Maryland who, in May of 1861, was arrested under authority of President Lincoln's suspension of the writ of habeas corpus. The President had

suspended the writ the previous month in an effort to crack down on saboteurs like Merryman,

who had helped to destroy several Union railroad bridges. lvferryrnan challenged the legality of

the President's action by petitioning ClùefJustice Taney-the presiding judge on the Circuit

Court at Baltimore--for a writ granting ms freedoffi. Despite persistent questions about

whether the issue raised by Merryman's petition was-due to its military and political

nature--a proper question for the Court to hear, Taney granted the writ.212 When the military

commander instructed to release Merryman refused to do sa, Taney even went so far as issue a

writ calling for that officer's arrest.213 This too was ignored. The ClùefJustice next took the

extraordinary step of convening a session of the Supreme Court. Sitting alone, Taney issued a

decision aimed less at achieving Merryman's freedom than attracting Lincoln's attention. Taney

expressed great surprise at the notion that the Executive could suspend the writ. As he wrote

in ms decision, the Constitution authorizes the suspension in Article l, an enumeration of

congressionai powers that "has not the slightest reference ta the Executive department."214

Taney described the President as an administrator whose job was not to make laws, but only to

ensure their faithEuI execution.21S

Taney's decision may have been sound constitutionallaw, but Republicans praised

LincoLTl and accused the Chief Justice ofgiving "aid and comfort to public enernies."216 Even

212 HAu., supra note 86, at 153. 213 This writ ofattachment never reached the military commander at the fort where Merryman was being held, because the marshaI carrying it was denied permission to enter the fort, Friedman, supra note 1, at 7. 214 17 Fed. Cas. at 148. Authorization for the suspension of the writ of habeas corpus is found in U.S. Const. Article 1, § 9, clause 2. Taney's argument was based upon the notion that since the whole ofArticle One is devoted to a description ofthe pO\vers ofthe Legislature, thcre could be no grant ofpower to the Executive branch found therein. 215 Taney ordered that a copy of his decision be transmitted to the President, who responded in his 4 July 1864 message to Congress that his action was justified by his constitutional cath to ensure the faithfuI exccution of the laws, and by the faet that the Constitution did not expressly state which branch could suspend the writ of habeas corpus. Lincoln prodaimcd that he doubted that the Framers intended no action he taken to proteet the publicsafety until such timeas Congress could convene, Friedman,supra note 1, at 7. 216 Quoted in id. at 8. Critidsm of the ChiefJustice was based upon the notion, embodied by Senator Henry • WiIson's comments, thatTaney "nevergave one cheering word nor pcrfonned one act to proteet orsave" the Union, id. 53 • after the war, though President Lincoln had managed to secure the appointrnent of four Associates and a replacement for Taney, respect for the Court was not restored. Many shared

the sentiments ofSecretary ofWar Edwin Stanton, who lamented that U[t]he judicial machinery

seemed as if it had been designed, not to sustain govemment, but to embarrass and betray

it."217

In the celebrated Ex parte Milligan218 case, the Court did little to restore the publiés faith.

The case pertained to a jurisdicti.onal dispute between military and civilian courts in Indiana

during the war. Lambdin P. Milligan and severa! antiwar Democrats were arrested and charged

with conspiracy to seize munitions and liberate Confederate prisoners from northern prison

outposts. Though the civilian courts in Indiana renlained open, the presiding military officers

opted to try the defendants in a military court. Milligan and two others were found guilty and

sentenced to hang, but the Circuit Court in Indianapolis overturned the convictions and sent the

case to the Supreme Court.

The Justices ruled unanimously that the military court lacked jurisdiction and ordered

Milligan and ms co-conspirators released. Justice David Davis of Maryland wrote the opinion

for the majority, arguing eloquently that the Constitution was never suspended in an emergency:

The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection ail classes of men, at aU times, and under all CÎrcumstances. No doctrine, involving more pernicious consequences, was ever intended by the wit of man than that any of its provisions may be suspended during any of the great exigencies of govemment.219

A sound interpretation of the Constitution to be sure, but Davis's decision proved to be quite

unpopular with Radical Republicans in the Congress, who correctly assumed that it implied the

judicial nullification oftheir entire Reconstruction program.22D With violence against the newly

emancipated blacks reaching grave proportions in the South, the use of military courts had been

217 Quoted in Friedman, supra note 1, at 8. 218 71 US. 2 (1866). 219 Id. at 120-12l. 220 Swindler, supra note 1, at 539. 54

a key element of the Republican strategy to protect them. When President Andrew Johnson

began ta vigorously apply the principle announced in Milligan to all cases in the South where

civilians were awaiting military trial, Republicans could take no more. Republican House leader

Thaddeus Stevens expressed the outrage ofrus colleagues, calling the Milligan decision even

IImore dangerous in its operation" than the Dred Scott decision and hinting that Republicans

would not be fettered by the COurt.22I The groundwork for a frontal assault on the Court had

been laid.

Attempts to curb the power of the Court, which had begun to trickle out of the Congress in

the aftermath of the Dred Scott decision, now began to flow freely. In January 1868, a bill

requiring a unanirnous Court to invalidate an Act of Congress attracted wide support in the

House of Representatives. The measure was eventually defeated, but a watered do'WI1 version

ofthe same bill passed the House by an overwhelming margin.222 In the Senate, efforts to curb

the Court's power went even further. lllinois Senator Lyman Trumbull introduced a bill

declaring the Reconstruction Acts to be beyond the reach of judicial review, but the bill \vas

never considered. Instead, the Senate focussed on another Trumbull sponsored bill, this one

proposing a moratorium on Supreme Courtappointments until the number ofJustices was

reduced to seven.223 As one proponent in the House bragged, ilthis bill abolishes the Judge

whose nomination the President sent to the Senate."224 While the bill's passage certainly prevented the President from seating Homer Stanbery on the Court,22S the impact of the bill

221 Friedman, supra note l, at 9. 222 The bill required a two-thirds majority of the Court to overturn Congressional legislation, 1 OiARL5 FAJRMAN, HISTORY OFTIiE SUPREME COURT OF THE UNITID STATES: RECONSTRucnON AND REuNION, 1864-1868, 65. 223 The number ofJustices had been increased from seven to ten in 1863, Act of March 3, 1863, 12 Stat. 794. See also, Friedman,supra note 1, at 22; HAll, supra note 83, at 475. 224 Swindler, supra note l, at 539. 225 Stanbery was generally weil regarded by RepubIicans in the Senate, and consequently this legislation must be seen as more than an attempt to deny mm confirmation, see Henry Abraham & Ed ward Goldberg, A Note on the Appointment ofJustices to the 5upreme Court oftire United States, 46 A.BA. JOURNAL 219-220 (1960). This is borne out by the that fact that after President Johnson signed the Act into law, the Senate promptly confirmed Stanbery as Attorney General, Friedman, supra note 1 at 22 n. 115. For an explanation of why President Johnson willingly signed legislation that essentially stripped him ofhis power to appointJustices to the Court, see id. at 22 n.117. 55 • proved ta be far greater: The legislation, which became known as the Judiciary Act of 1866, conveyed the message that the Court was not to be considered a separate institution, but was

rather an extension of the Senate.

These struggles between the Court and the Senate resulted in a Supreme Court with a

serious credibility problem. While the Court itself deserved much of the blame for this,

especially in the wake of the Dred Scott decision, the Senate was aIso largely responsible for the

Court's reduced prestige. If the Justices had ushered in a period of temporary judicial decline

with Dred Scott, the Senate, through its role in the confinnation process, institutionalized this

decline. By reinforcing the belief that the Court was a political institution, senators diminished

public respect for the Court greatly. This was arnply demonstrated in the pages of The Nation,

which, more than a decade after the infamous Dred Scott decision, published this account of the

Court:

Thirty years ago the Supreme Court, and indeed the judiciary generally stood as high in the general estimation of the public as it is given mortal authority ever ta stand... [But tIhe Supreme Court ... became in a few short years the most despised of American institutions.226

Similar denunciations appeared during the same period in The New York Times, which accused

the Court of "leading society to an unfathomahle abyss of degradation and disaster."227 Such

antagonistic attitudes to\vards the Court reflected deep and underlying concerns about the

legitimacy of the Court's decisions. As the least democratic branch ofgovernment, sorne of the

Court's decisions smacked of usurpations of the power of its coordinate branches. This

behavior, however, was clearly linked to the Senate's repeated efforts to use the confinnation

process to control the Court. Indeed, the newspaper accounts seem to indicate that during this

time the relationship between the Senate's role in the confirmation process and public respect

for the Court resembled a zero-sum game: As the Senate became more involved, public respect

for the Court declined.

226 19 NATION 477,478 (1869), quoted in Friedman,supra note 1, at 2I. • 227 THE NEW YORK TIMES, Dec. Il, 1869, at 4, col. 3, quoted hz Friedman,supra note l, at 21 n.l10. 56

B. Reconstruction Appointments

Ifthe Civil War suspended the smaller conflict being waged over controi ofSupreme Court appointments, the passage of the Jucliciary Act of 1866 resumed this struggle. The Judiciary Act of 1869 restored the number ofJustices to nine, but control over the Court remained at issue throughout Reconstruction. In the aftermath of the war, Lincoln Attorney General Edward

Bates described the Court as "a rnere party machine; to be rnanipulated, built up and pulled clown as party exigencies require."228 In such an atmosphere, it was not surprising that the confirmation process became further politicized.

As the candidate of the Radical Republicans, President Ulysses S. Grant was destined to enjoy a better relationship with the Congress than rus predecessor. When it came ta Supreme

Court appointments, however, it was soon apparent that the Senate intended to keep a close eye on Grant. Though Grant's fust nominee to the Court, Attorney General Ebenezer Haar, was an excellent candidate,229 a rnajority in the Senate formed a coalition to oppose hin1. Sorne maintained that they wished to see the seat awarded to a nominee from the "Reconstructed"

South, but most were opposed to Hoar because of rus earlier support for unpopular civil service reforms and rus opposition to the Johnson impeachment campaign.230

As Hoar's nomination languished in the Senate, the Radicals prepared to seat one of their own on the Court. In December of 1869, Associate Justice Robert C. Grier annaunced his decision ta resign effective February 1, 1870. Immediately, majority elements in beth the House and Senate drafted a petition supporting the nomination of former Secretary of War Edwin M.

Stanton.231 Stanton's was hardly the resume of a Supreme Court Justice, as historian William

228 Friedman, supra note 1, at 9. Professor Friedman's description ofthe Court in this period tends to c:orroborate Edward Bates's testimony: '1be crucial issues of Reconstruction put a premium on ideological control of the Court, and Congress was encouraged in exercising that control by prevailing views ofthe political nature of the Court's role, by the Court's relatively low standing, and by the apparently political actions and responses of the Justices themselves,"éd. at 21. 229 Vieira & Gross, supra note 13, at 325. 230 Friedman, supra note 1, at 28; see a/so Swindler, supra note 1, at 540. 231 Abraham & Goldberg, supra note 225, at 225. 57

S\vindler recalls:

An arrogant opportunist who as a Cabinet member had intrigued with the Radicals against Johnson and who brazenly refused to resign when at last the harassed President dismissed him, Stanton was the prototype of the men the radicals wanted to see on the Court. ln 1867 he had had the effrontery to dictate a section of the Military Appropriation Act of 1867 requiring that the President issue all military orders through the Secretary of War and that any other military commands of the Commander in Chief should be nuII. From February, to May, 1868, when Johnson's impeachment failed, Stanton had barricaded rus office and refused to permit access to War Department records. Only when the prospect of ousting the President vanished did Stanton grudgingly give up rus resistance.232

Despite the nominee's lack of qualifications, President Grant assumed that he would have to

nominate Stanton in order to preserve Hoar's candidacy. Accordingly, the President submitted

Stanton's name to the Senate on December 20, 1869, whereupon Stanton was immediately

confirmed.233 When Stanton died unexpectedly four days later, however, any sense of Senate

obligation to the President ended and Hoar was defeated 24-33.234-

C. The Weakening ofthe President's Roie

The highwater mark ofSenate hegemony overappointments came during the Grant

Presidency. As Richard Friedman notes, the Reconstruction experience had fostered the belief

that "the Court was not to he treated reverentially, but rather in the open hurly-burly of partisan and sectional politics": Given such attitudes, "significant senatorial participation seemed perfectIy appropriate."235 During the Grant administration, key leaders in Senate like

Roscoe Conkling, George Edmunds, Charles Sumner, and Simon Cameron came to play a preeminent role in fonnulating policy. As Senator George Hoar of Massachusetts iater recounted in his autobiography, "[i]fthey visited the White House, it was to give, not to receive advice.... Each of these stars kept to rus O'Wll orbit and shone in ms o\vn sphere, within which he tolerated no intrusion from the President or from anybody else."236 As this trend developed,

232 Swindler, supra note 1, at 540. 233 Stanton was confinned by a 46-11 vote that same day, HAlL, supra note l, at xlvi. 234 Id. 235 Friedman, supra note 1, at 35. 236 GEORGE F. HOAR, 2 AUTOBlOCRAPHY OF SEVEN1Y YEARs, 46 (l903). Quoted in Harris, supra note 61, at 78. 58 the influence of the President over judicial selection declined. This was amply demonstrated by the Senate's response ta three of Grant's nominations.

The most brazen demonstration of the Senate's power over appointments in the post­

Ovil War era resulted in the nomination ofStanton. Thankfully, as Professor William Swindler notes, lithe question of what the Court might have become with the addition of a rancorous and domineering politician"237 was obviated by Stanton's death. Still, the fact that the Senate chose to reward this bitter partisan with life tenure on the Supreme Court did not recommend the wisdom of Senate advice.2J8

Another example of Senate arrogance came less than six weeks after Stanton's death, when Grant nominated New Jersey lawyer Joseph B. Bradley ta fi11 Justice Griers seat. When

Bradley's confinnation quick.ly ran into trouble, Senator Edmunds introduœd a motion that the

Senate Judiciary Committee be instructed to consuit with the Executive on the nomination.239

This attempt to strengthen the role of the Senate at the expense of the President failed, but that such a manoeuver was even attempted dernonstrated a dangerous disrespect for the Executive.

This pattern repeated itself during Grant's second term. During the opening days of 1874, the President chose sitting Attorney General George H. Williams to succeed the late SaInlon P.

Chase as cruefJustice. Though he had previously served as ChiefJustice of the Oregon territory, concerns over rus judicial fitness expressed by the organized bar quickly derailed the vVilliams nomination.240 While the Senate ultimately voted to postpone the nomination,

237 Swindler, supra note 1, at 540. 238 Grant, of course, was partially to blame for this episode as weIl. For while prudential considerations may have left Grant Little choice but to accept the nomination, after this incursion Grant made absolutely no attempt to shore up his power over appointments. Instead of ascribing the nomination to unique historical circumstances, or to the extraordinary ability ofthe nominee, Grant disingenuously legitimized events by saying that he had been fearful of makingtheappointmentwithout theSenate's "indorsement," quoted in Friedman,supra note 1, at 36. 239 Id. at 35-6. 240 Specifically, the New York Bar Association passed a resolution opposing Williams on the grounds that the nomination 'Idisappoints the just expectation of the legal profession and doC'S not deserve the approval of the people for the reason that the candidate proposed is wanting in those qualification of intellect, experience and reputation which are indispensable to uphold the dignity ofthe highest National Court,"2 WARREN1 supra note 93 at 556, qltoting NEW YORK TRIBUNE, 8 January 1874 p.l. Other charges revolving around the fraudulent use of Justice Department funds while Williams was Attorney General did not help his chances, Vieira and Gross, supra note 13, at 326. S9 • President Grant refused to withdraw it. During the stalemate that followed, the President's close friend, Senator Roscoe Conkling of the Judiciary Committee, offered a compromise: Let

the members ofthe 5upreme Court choose the ChiefJustice from among their ranks.241 Whether

the President supported Conkling's proposai is open to question, but it is clear that the Senate

had no reservations about further weakening the President's roie. Eventually the Judiciary

Committee rejected the idea, and Williams forced Grant to withdraw his name, but not before

the President had suffered considerable emba...rrassment.

D. The Decline ofPartisanship

As the partisan passions that accompanied the Ovil War and Reconstruction subsided,

the need to control 5upreme Court appointments waned. In 1874 Caleb Cushing was rejected

because of an innocuous letter he had written to Confederate President Jefferson Davis during

the Civil War.242 By the late 18805, however, President Grover Oeveland was able to secure

the appointment of the man who had drafted Mississippi's ordinance of secession, Lucius Q.C.

Lamar.243 Thereafter, though the country fell short of President Benjamin Harrison's goal to

bring about the "complete disappearance of sectional sentiment from American politics,"244 the

strict politics that had shaped Reconstruction appointments loosened. This was demonstrated

in 1894 when Oeveland nominee Edward D. White, who had fought for the Confederacy during

the Civil War, became the first nominee in 15 years to be nominated and confirmed on the same

day.245

241 The proposai was described as a "happy expedient to let Mr. Williams down gracefully," 2 WARREN, supra note 93, at 556. 242 In the opinion of historian Charles Warren, Cushing was a superbly qualified candidate who "probably excelled eithcr Marshall or Taney or Chase," id. at 557. For a full account of the Cushing nomination, consult Friedman,supra note 1, at 24-25; Harris, supra note 61, at 76-77. 243 Since the war, Lamar had managed to rehabilitate himselfin the cyes ofnortherners. ln 1874, he had delivered a notable eulogy celebrating the life ofCharlesSumner, and he was instrumental in organizingsouthern support for the Electoral Commission of1877, Friedman, supra note 1, at 38. 244 THE NEW YORK TIMES, Feb. 20, 1893, at 4, col. 1, quoted in Friedman, supra note 1, at 41. 245 No nominee had achieved this remarkablc fcat since 1869, when the Radicals hastily pushed the name of Edwin Stanton through the Senate. E. Senatorial Courtesy Derails Cleveland's Nominees

Though the partisanship which marked confirmations during Reconstruction now receded, politicaI considerations remained at the fore. One way senators retained their influence over judicial selection was through the introduction ofsenatorial courtesy. Since the earliest ofdays of the Republic, senators had recognized, in the words of Professor Henry Abraham, "the need for solidarity to prevent a president from appointing a senator's political adversary ta high office."246 This practice began during President Washington's first round ofappointments in

1789, when Georgia's two senators, back.ed by the entire Senate, forced Washington ta withdraw the nonùnation ofBenjamin Fishboum to a naval postin Savannah.247 By the close of the nineteenth century, this practice had become so entrenched that senators were easily able to broaden its application to the nomination of Supreme Court Justices.

In JuIy 1893, Justice Samuel Blatchford of New York died. To replace him, President

Oeveland-now back in the Wlùte House after sitting out the Harrison presidency-nominated

William Homblower, a Columbia Law School graduate who had made a name for himself practicing corporate law in New York Oty.248 Homblower was well-qualified, but he had chosen his enemies poorly. Earlier in rus career, serving as an election cornmissioner in New

York, Hornblower had exposed corruption in the election of Isaac f-I. Maynard, an appeals court candidate who was closely allied with Senator David B. Hill. Senator Hill never forgot the stight, and rewarded Homblower by opposing rus nomination.249

Though Oeveland found this conduet distasteful, (and even flirted with the idea of renominating Hornblower,) the President eventually settled upon a new nominee. Wheeler H.

Peckham was an even more impressive candidate than Hornblower. A founder of the New York

State Bar Association, Peckham had aIso served as legal counsel against Boss Tweed, the nead

246 HAu., supra note 86, at 772­ 247 Id. 248 Id. at 412. 249 Id. I~

61 of New York City's infamous political machïne.2SO Yet again Senator Hill intervened, this time with the help of New York's other Senator Edward Murphy, to block Peckham, who had apparently made the llÙstake ofbeing too independent of the New York Democratie Party machine.2S1

By the end ofOeveland's second tenn, the Senate's power over the confirmation process had reached its apex. Not coincidentally, the power and prestige of the Court had reached its nadir. Both Whee!er and Peckham were men who not only exposed corruption during their careers, but who demonstrated independence from prevailing political institutions. The fact that this independence doomed their nominations was testament to the Senate's growing power.

Indeed, the Republican politicians who dominated the Senate during Reconstruction had treated the Court lias an instrument of power,"2S2 and the Democrats, when in the majority, acted in much the sarne way. Justices of the period were expected to act, and often did act, like partisan politicians, and this did great violence to public faith in the Court. As the historian

Charles Fairman wrote, lI[s]ubmission to the Court as the true voice of the Constitution presupposes an established confidence in the lofty disinterestedness of its members-something that ... the [Reconstruction] Court did not have."2S3 Thanks in large measure to the those in the Senate, "[t]he Supreme Court ... became in a few short years the most despised of

American Institutions."254

250 Swindler, supra note 1, at 541; see also HAu.,supra note 86, at 627. 251 HAu., supra note 86, al627. 252 STANl.EY KtJlUR, JUDIOAL POWER AND RECONSfRUcnON POUTlCS 8 (1969), qlloted in Friedman, supra note 1, at 19. 253 FAIRMAN, supra note 222, at 514. 254 19 NATION 477, 478 (1869), qlloted in Friedman,supra note 1, at 21. 62

SECflON V: THE TRANSFORMATION IN SENATE RESPONSE TO SUPREME COURT NOMINEES (PARTID)

Despite the obvious power that individual senators were able to exert over the

confirmation process, towards the end of the nineteenth century the balance of power over appointments began to change drarnatically. In the wake of the Peckham and Homblower

nominations, many observers cried fouI against the dirty tricks used by the Senate.25S If the

Senate class of 1894 seemed IIcalious to outside opinions," as The Neto York Times reported,

\vithin a decade power would shift back towards the presidency.2..·~

Three factors spurred this development. The first was the so-called "nationalization" of the Court. As the sectional strife unleashed. by the Civil War receded into memory, the imposition of political tests for Justices came to be seen as illegitimate. This change, arnply demonstrated by President Grover Oeveland's appointment ofConfederate veteran Edward

White in 1894, and again during William Taft's presidency with the confinnation of Horace

Lurton and the elevation ofWhite to ChiefJustice,257 clearly undermined the position from which Republican senators had influenced judiciaI selection during Reconstruction. The new role of a Justice was aptly described by The Boston Hera/d, which noted that a Justice "does not sit exclusively for [one StateJ, he administers Iaw for the whole nation."258

The "nationalization"of the Court aIso Ied to the abolition of the Justices' circuit riding duties in 1891.259 Previously, each Justice had been required by law to aIso sit upon one of the

255 THENav YORK TIMES, 18 January 1894 at 4 col.7, qltoted in Friedman, supra note 1, at 53. 256 THE Nav YORK TIMES, 26 January 1894, at 4, col. 7, qrcoted in Friedman, supra note 1, at 53. 257 Taft's nomination of Confederate war veteran Horace Lurton, who had served with him on the United States Court of Appeals for the Sixth Circuit from 1893 ta 1900, amazingly drew almost no criticism. One Taft corespondent even joked that Lurton, who had becn captured and detaineà by the Union anny, was "the only man ever appointed to the Court who had served time in prison," quoted in Friedman, supra note 1, at 69. Similarly, the appointmcnt of Edward O. White as Chief Justice exactly one year later elicited almost no negative rcsponsc: indced, Taft's predecessor,Theodore Roosevelt commented that "nothing could better augury of the future ofthe country than that a Republican President should appoint a former Canfederate Chief Justice of the United States, and reccive the unanimous applause of his countrymcn," Alexander Bickel, MT. Taft Rehabilitates the Court, 79 Yale L.J. 43 (1969), quoted in Friedman, supra note 1, at 69. 258 Id. at 51. 259 Act of Mar. 3, 1891, 26 Stat. 827. 63

various circuit courts, and thus senators could at least expect a degree of influence over

appointments from their state. As the circuit rule declined, however, the power ofgeography

declined with it. Senators resisted this change, as when Simon Cameron opposed a nomination

"on the ground that Pennsylvania, with her twenty-three electoral votes, is entitled to either a

place in the Cabinet, or else upon the bene.." of the 5upreme Court,"26D but the flo\v of history

was against them.

A second factor which affected the power of the Senate over judicial selection was the

tremendous growth in the Court's docket. Though part of this increase was due, as Harvard

Professor Felix Frankfurter noted, to "the natural increment of the country's growth,"261 the

Court's jurisdiction aIso increased dramatically after the Civil War. Through the extension of

federal habeas corpus, the ratification of the Thirteenth and Fourteenth Amendments, and the

passage of the Reconstruction Acts, the number of cases heard by the Court tripled between

1870 and 1890.262 This trend reached its zenith with the passage of the Removal Act of

1875,263 which granted the federaI courts original jurisdiction over all cases originating under

federallaw, and provided for the removal of these cases from state to federaI COurts.264

The combination of these factors spelled trouble for the Senate. "From 1789 do\vn to the

Civil \-Var," Professor Frankfurter described, "the lower courts were, in the main, designed as

protection to citizens litigating outside their own states and thereby exposed to the threatened

prejudice of unfriendly tribunals": Now, however, "[n]ationalism was triumphant; in national

administration was sought its vindication."265 As the orny elected official with a truly national

perspective, the President gained tremendous power over the selection ofJustices. Thus the

260 THE NEW YORK TIMES, 8 January 1874, at 1 col. 2, quoted in Friedman, supra note 1, at 51. 261 F. FRANKFURTER &J. LANoIS, THE BUSINESS OFTHESUPREMECOURT 60 (1927). Quoted in Friedman,:iitpra note 1, at 48. 262 Friedman, supra note 1, at 48. See a/so, Habeas Corpus Act of 1867, Thirteenth Amendmellt, FOllrteellt/r Amendment, and Reconstruction, respectively, in HALL, supra note 86. 263 Act of Mar. 3, 1875, 18 Stat. 470. 264 HAu., supra note 86, at 726; Friedman, supra note 1, at 48. • 265 FRANKFURTER & LANDIS, supra note 261, at 64. Quoted in Friedmanisupra note 1, at 49. 64

third factor which signalled the decline ofsenatorial participation in the confirmation process

was the growth ofpresidential power. The realignment began under Benjamin Harrison, who

reinvigorated the presidential role in judicial selection by rehabilitating it. Harrison took the

power ofappointment very seriously, carefully examining the background and ability of every

candidate he considered,266 and bis nominations were considered by supporters to have

"reflect[edJ credit on the appointment power."267

athers, like President William McKinley, reasserted the right of appointment through sheer

force. McKinley had little difficulty pushingJoseph McKenna's name through a hostile Senate

because many senators were afraid "to sho\'V unfriendIiness to the President."268 The most

striking evidence ofsenatorial weakness came with Theodore Roosevelt's nomination ofOliver

Wendell Holmes.269 Holmes was opposed by rus home state senator, George Hoar of

Massachusetts, who described the nomination as "the greatest personal affront [ever] put upon

a member of the Senate."270 Ten years earlier, Hoar would have been able to sabotage the

nomination easily; indeed, as the Chairrnan of the Judiciary Committee he was uniquely situated

to do so. By the time of the Holnles nomination, however, Roosevelt was able to secure the

nomination without so much as a public word out ofSenator Hoar.271

By 1902 then, as Professor Friedman explains, ilsenators had begun to understand and

accept the long-developing trend that made the selection of5upreme Court Justices a national,

rather than a local, matter."272 Accordingly, the role of individual senators in nominations

declined, ushering in a period ofpresidential hegemony over5upreme Court appointments. Not

266 See e.g., THE NEW YORK TrMES, 10 December 1890 at 4, col. 1; id. 2S January 1893, at 4, col. 3. 267 Quoted in Friedman, supra note 1, at 65. 268 THE NEW YORK TrMES, 17 December 1897, at 3 col. 4. 269 Holmes was nominated to replace the lateJustice Horace Gray on December 2,1902, HAu.sllpra note 1, atxliu. 270 Letter from George Hoar to Henry Cabot Lodge, July 15, 1903. Quoted in Friedman,supra note 1, at 54. 271 In fact, Hoar kcpt his opposition to the Holmcs nomination silent becausc he feared the reprobation of the general public which, he told Henry Cabot Lodge, would find the nomination lIentirely respectable." Lctter from George Hoar to Henry Cabot Lodge, August Il, 1902, qlloted in id. at 54. 272 Friedman, supra note 1, at 54. 6S coincidentally, the growth ofpresidential power overSuprern.e Court appointments mirrored developments in the nation as a whole. Theodore Roosevelt's ascension to the Oval Office marked a significant departure from the nineteenth century mode! of the presidency. As

Roosevelt centralized power in ms office, the Executive regained control over judicial selection. 66

SECTION VI-SUPREME COURT CONFIRMATIONS IN THE MODERN ERA

For a short time it appeared as though this power realignment would hoid. President

William Taft's six nominations to the Court reflected so favorably upon the Executive, that

judicial selection came to be seen as a matter in which U mere senators" should not interfere.273

Taft was successful because he piaced merit above politics in rus decision-making process,274

and aIso because his experience as a federaI judge gave him a degree of credibility that few

Executives brought to judiciaI selection. When the presidency passed into ne\v hands, however,

the deference that senators had shawn President Taft evaporated. While factors like the

Court's expanding power and jurisdiction played a significant raIe in this transformation, the

passage of the Seventeenth Amendment in 1913 aiso markedly changed the balance of power

behveen the President and the Senate.275 The direct election of senators changed the

institutional character of the Senate by giving the people a measure ofcontrol over members of

the upper chamber. This proved to be useful as the Senate rnoved ta reassert power of 5upreme

Court appointrnents. Ifthe decline of the circuit rule prevented individual senators from using geography as an excuse ta influence judicial selection, the Seventeenth Amendment provided a

new rationale for Senate involvement in the selection ofJustices by making senators representatives of the people rather than the states. 5ince President Taft had rehabilitated the image of the Court, it was difficult for senators to use the partisan techniques their

Reconstruction predecessors had used ta control the Court. Accordingly, senators began to devise new techniques, like public exposure, to attempt to influence the selection ofJustices.

273 Quoted in id. at 76. 274 As one legal journal noted ofa particularTaft appointment, it deserved "the commendation ofevery patriotic and high-minded dtizen regardless of party affiliation," The NeLl} Associate Justices, 16 V A. L. Ra:; 702, 703 (1911), qlloted in Friedman, supra note 1, at 68. 275 US. CONST. amend. XVII, § 1 ('The Senate of the United States shaH be composed of two Senators from each State, elected by the people thereof'). Whilc proposais providing for the direct election ofsenators had been a feature ofevery session ofthe House of Representatives since 1826, it took the influence ofprogressive reformers like Senators Robert LaFolIette (R-WI), George Noms, and Hiram Walkcr (R-CA) to win passage ofthis measure in the Senate, Scott Crawley, The Effects of the Sixteenth and Seventeenth Amendments in Changing tire Role of the States i11 the Federal System, BYU L. REY., 162 (1989). 67

A. The Brandeis Case

The nomination of Louis Dembitz Brandeis to the Supreme Court in 1916 marked a significant departure from the historical pattern ofconfinnation proceedings.276 Much of the opposition to Brandeis was blatantly political: As the architect of President Woodrow

Wilson's anti-trust policy and a life-long friend of t.lte labor movement, Brandeis was a controversial partisan figure.277 He was also a Jew; which, though never cited as a reason for rejection, remained a consideration in the eyes of many of his opponents. While politics and religion both played a role, neither factor accounted for Brandeis having to face, in the words of

historian Joseph Harris, a Ilstronger and more determined opposition" than any previous nominee.278 Rather, two other factors made the nomination unique: The role of special interest groups, and the focus on the nominee's political philosophy.

The influence ofspecial interestgroups over the Senate Judiciary Committee's four month investigation into the background and qualifications of Louis Brandeis was unprecedented. For the first time, advocacy groups like the American Bar Association sought to exercise influence over the confirmation process.279 At the behest of Republican Senator Henry Cabot Lodge, seven fonner Presidents of the ABA, including former President Taft and ms close friend Elihu

Root, submitted a letter to the Senate Judiciary Committee labelling Brandeis "nat a fit persan to he a member of the Supreme Court of the United States."280 Moorfield Storey, a signatory of the ABA letter and counsel ta the New Haven Railroad, sununed up the apposition's

276 Rader, sllpra note 35, at 803. 277 Even within the Democratie party, Brandeis was not entirely trusted. During Wilson's first term, the President considered appointing Brandeis Attorney General or Secretary of Commerce, but northeastern Democrats convinced Wilson that "a large number of reputable people" would find the appointment objectionable, KENDRICK A. QEMENTs, THE PRESlDENCY OF WOODROW Wn..50N, 34 (1992). 278 Harris, supra note 61, at 99. 279 Friedman, supra note 1, at 8l. 280 That letter is reprinted in THE ABA AND SOCIAL PouCY: WHAT RoLE? ([HE F EDERAUsr SOClETY FOR LAw AND PuBucPoucy STUDlES, Washington, D.C.) (1991) 89. According ta another letter from Taft to Senator Lodge, Lodge had informed former Taft Attorney General George Wickersham that he felt the organized Bar should support his opposition ta the Brandeis nomination. "The report of that," Taft wrote Lodge, "was the protest signed by seven Presidents of the American Bar Association, which [ think is an effective a representation of the opinion of the American Bar as it is possible to secure in a short time," reprillted in id. at 90. 68

viewpoint, describing Brandeis as Ilan able lawyer, very energetic, ruthless in the attainrnent of

his abjects, nat scrupulous in the methods he adopts, and not ta be trusted."281 The nomination

aIso drew the criticism of a group of leacling lawyers and businessmen from Brandeis's home-

state. Fifty-five Bostonians signed a petition, circu.Iated by Harvard President A. Lawrence

Lowell, opposing the nomination, and even retained legal counsel before the Judiciary

Committee.282 Other organized groups who opposed the nominee included the Anti-Saloon

League,283 led by Bishop James Cannon, the United Shoe Machinery Company, 284 and the New

England Railroad.285

In each case, the charges against Brandeis were repudiated by credIble witnesses. The opposition of President Taft and six other former ABA presidents was undermined by the personalletter ofsupport written by President Emeritus Charles W. Eliot of Harvard, himself a former President of the group. In addition, a majority of the sixteen former ABA Presidents still living did not oppose Brandeis.286 The opposition of the Boston group was ridiculed by a

Boston newspaper favorable to Brandeis, which published an account of the close interconnections of the fifty-five signatories of the Lawrence petition, tracing most of them back ta a half-dozen law firrns.287 The charges of intemperance levied by Bishop Cannon were also called into question when it was revealed that they were based u pon Brandeis's representation of a brewers association sorne twenty-five years earlier.288 In the end, nearly every one of the charges against Brandeis was discredited. As Norman Hapgood, editor of Harper's Weekly reported, lI[t]he more l study the charges against Brandeis, the more highly l think ofmm. l

281 Quoted in Harris, supra note 61, at 105. 282 Id. at 100. 283 Id. at 107. 284 Id. at 106. 285 Id. at 99. 286 Paul Freund, The Appointment of Justices: Sorne Historical Perspectives, 101 HARV. L REY. 1152 (1988). 287 Harris, supra note 61, at 100. 288 Brandeis, who represented the brewers before the Massachusetts legislature, had told astate committee "liquor drinking is not a wrong; but excessive drinking is." Bishop Cannon objected to Brandeis as much for this statement, as because he had acted as a lobbyist on behalfofthe brewers, id. at 107. 69 traced each to its source, and in every case it turned out to be made out of whole cloth, or, when understood, to be to the credit of Brandeis."289

The other factor that made the Brandeis nomination unique was the close attention paid to the nominee's political philosophy. While most of the critics who spoke out against Brandeis couched their opposition "in tenns of vague questions about judicial temperament and professional ethics," as Judge Randall Rader has noted, the majority of those who counselled rejection did so based upon predictions about how the nominee would vote on the Court.290 For example, President Taft toid his friend Gus Karger "1 think it is a biow at the 5upreme Court ... to have a man whose reputation is shady in respect to the ethics of rus professional practi.ce, to be put on the Bench."291 But, as a letter to another friend revealed, Taft seemed more concerned with how Brandeis would decide actual cases: "As one upon the Bench ... [Brandeis] may seenl ta be more conservative than expected, but wherever rus vote will count to break down the conservative language of the Constitution, it will be cast ...."292

In the end, the full Senate refused to broaden its inquiry to include a substantive reviewof

Brandeis's political philosophy, instead passing judgement upon the excellent qualifications of the nominee. 293 After four months ofinvestigations during which hearings were twice reopened,

Louis Brandeis was confirmed on June 1, 1916, as the sixty-ninth Justice of the Supreme

Court.294 With the 1916 Democratic convention just a month away, the confirmation was a great victory for President Wilson. Had Brandeis lost, the appointment would have become a crucial issue in the election later that year.295 Though the Brandeis nomination did not hurt

289 It should he noted that Hapgood investigated the charges at President WiIson's behest. id. at lOlo 290 Rader, supra note 35, at 804. 291 William H. Taft to Gus J. Karger, March 20, 1916. RqJrinted in THE ABA IN LAW AND PUBUCPOUCY: WHAT RoLE? , supra note 280, at 91. 292 William H. Taft ta Truman Palmer, January 31, 1916, partially reprinted in id. at 93. 293 Roscoe Pound of Harvard University testified that "so far as sheer legal ability is concerned, [Brandeisl wiII rank \Vith the bcst who have sat upon the bench ofthe SupremeCourt," quoted in Rader, supra note 35, at 803. 294 The vote followed strict party lines. Brandeis reccived 47 yeas against 22 nays. 295 According to historian Joseph Harris, "[h)ad Brandeis been rejected . _. [it) probably would have changed the result of the election," Harris, supra note 61, at 99. 70

Wilson's reelection bid, it did not augur weil for the future of the confirmation process. As a

prescient article in The Ne-UJ Repuhlic reported shortly after the votes were tallied:

The hann done cannat weIl be undone. There is no use shirking the facts. The Court has been dragged into politics, and if at sorne future time an appointment is made which is as conspicuously conservative as that as that of Mr. Brandeis was conspicuously liberaI, it will not be surprising if the liberals, throwing off th.e seif-restraint they have shown this time, should follow the wretched example set by Mi. Brandeis's conservative enemies.296

In the end, several of the methods used to attack Brandeis proved to be trend-setting. First,

though Brandeis himselfdid not appear before the Judiciary Committee, the fact that his

hearings were opened to the public set a new precedent for openness which would eventually

revolutionize the confirmation process. Second, the detailed focus on Brandeis's political

philosophy moved the Committee into uncharted territory.

B. The Callitlg ofNominees before the Senate Judiciary Committee

Ifin 1916 the Brandeis hearings proved to be the exception, witlùn a short period of time

the level ofscrutiny that marked his confirmation became the rule. Two developments, each

dependent on the other, made this all but inevitable. The first was a change to standing Senate

rules which made all eonfinnation proceedings a matter of public record. Prior to 1929, it \vas

the accepted practice of the Senate to consider aU Supreme Court nominations in closed

executive session.297 Objections were frequently raised by senators, but excepting those rare

occasions when two-thirds of the senators voted to open specifie hearings, the proceedings

remained closed.298 Due to repeated leaks to the press, however, the practice of allowing closed

votes was reconsidered during the 71st Congress. In response to specifie disclosures about

nominations, the Senate Rules Committee proposed that open executive sessions on several

nominations be authorized by a majority vote.299 Outrage over the diselosures was so

296 TIle Close of the Brandeis Case, THE NEW REPUBuc, June 10, 1916, at p. 134, reprinted in THE ABA lN LAW AND S

pronounced, however, that the bill was rejected as too mild by severa! senators. Many agreed

with progressive Senator George Noms of Nebraska, who argued that "'public business should

be transacted in public."300 Eventually the Senate settled upon the change suggested by Senator

Joseph Robinson of Arkansas, to make every session open unless closed by a majority vote.301

A second factor wlùch increased the scrutiny given ta Supreme Court nominees was the

developing tradition of having nominees testify before the SenateJudiciary Committee. This

practice traced its roots back ta the 1925 confirmation of Attorney General Harlan F. Stone.

Prior to this, interaction between the Committee and the nominee had consisted of occasional

written exchanges, but no nominee appeared personally before the Commïttee.302 Stone became

the first nominee to testify on January 28, 1925, after charges ofetlùcal violations in the Justice

Department's investigation ofSenator Burton K. Wheeler caused the full Senate ta vote to

recommit his nOIIÙnation to the Judiciary Committee.303 Recognizing the Committee's interest in

the Wheeler affair, Stone opened lùs testimony with a statement about \\thy he had decided to

prosecute the case. Though the statement elicited over five hours of often pointed questions led

by Senator Thomas Walsh, Stone kept his cool, respectfully defending the Justice Department's

conduct in the case. In the end, the nominee convinced the Committee, and was confinned by

the a 71-6 vote in the full Senate. Even Senators Borah and Walsh, Stone's principal opponents

300 THE NEW YORK TrMS, 24 January 1929, at 5, col. 1, quoted in Freund, supra note 286, at 1158. 301 The change \Vas embodied in what becameSenate rule 31(2), id. at 1158. 302 In 1874, Attorney General George Williams submitted written materials in support of his nomination, but withdrew his nomination after he was denied an opportunity ta tcstify. Three ycars later, Rutherford B. Hayes's nominee John Marshall Harlan wrote his Senatc sponsor to indicatc his willingncss ta appear before the Committee, but his testimony was not required, Frank, The Appointment of 511preme Court Justices: Prestige, Princip/es, and PoUties, 1941 Wrsc L. REY. 172, 200-4. 303 Senator Wheeler had becn indicted by a grand jury in April 1924, for practicing law before a governmental agency with the intent to commit fraud. Though Whceler had becn exonerated by an investigation led by Senator William Sorah ofIdaho, Attorney General Stone ordered a ncw grand jury investigation to bcgin in February 1Q25. [n response, Wheeler's counscl, Senator Thomas Walsh of Montana, orchestrated a succcssfui vote to send StoneJs nomination back ta the Judidary Committce. The bipartisan composition ofthis vote may have provided Walsh with sorne cover, but Walsh's role as Wheeler's legal counscl called his motivations into question, see James Thorpc, Tite Appearance of Supreme Court Nominees before the Senate /udiciary Committee, 18 JOURNAL OF PuBuc LAW 371-373 (1969); William Ross, Tire Questioning of 5upreme Court Nominees At Senate Confirmation Hearings: Proposais For Accommodati71g TIre Needs Of The Senate And Ameliorating The FeaTS Of The Nominees, 62 TUIANE L. Ra'. 116-117 (1987). 7Z only a few weeks before, came out in support of rus nomination, as did ChiefJustice Taft.304

Shock.ed at the ease with which he had managed to curry the favor of the Committee, Stone later commented: "1 did nat foresee that they would deliver themselves into my hands so completely."305

Precisely because of Stone's success, his testimony did not establish a precedent for persona! appearances by a noInÏnee. SeveraI years later, when faced with the opposition of both organized labor and the NAACP, North Carolina Appeais Court Judge John J. Parker volunteered to testify before the Committee but was refused.306 Apparently the memory of the

Stone nomination was still fresh in the minds ofSenators Borah and Norris, both of whom agreed that the submission of written materials would be sufficient. Unfortunately for Judge

Parker, however, a majority of senators were not sufficiently convinced of ms qualifications, and he was rejected by a vote of 41-39, the c10sest margin of defeat ever for a Supreme Court nominee.

It was not until the nomination of Felix Frankfurter that the emerging practice ofcalling

Supreme Court nominees to appear befare the Judiciary Committee received serious attention.307

Anticipating the hostility that ms nomination might create, Professor Frankfurter was advised by presidential assistant Steve Early ta plan on testifying, and a few days before the hearings he received a formai invitation to do so from Senator Neely ofWest Virginia.308 Frankfurter refused Senator Neely's invitation, instead putting ms counsel Dean Acheson at the disposai of the Committee. Acheson attended the first day of testimony, mostly by witnesses hostile to

Frankfurter, but the next clay Frankfurter appeared on rus own behalf and read the follo\ving

304 Taft wrote a letter to Stone indicating how pleased he was with Stone's performance, especially in light of the malevolent use to which Senators Walsh and Wheeler had puttheJudidaryCommittee,Thorpe, supra note 303, at 372. 305 Id. at 373. 306 At the suggestion of his sponsor, Senator Lee s. Overman, Parker wrote a letter indicating "if the Judiciary Committee ofthe United States desires my presence and requests it, 1shaH, ofcourse, beglad ta come." The Committee dedined this offer, Thorpe.. supra note 303, at 375. 307 [d. at 375-8. 308 Senator Neely headed the subcommittee charged with investigating the Frankfurter nomination. 73

staternent:

[ am very glad to accede to this committee's desire to have me appear before it. l, of course, do not wish to testify in support of my own nomination. Except in one instance, involving a charge against a nominee conceming his official ad as Attorney General, the entire history of this committee and the Court does not disciose that a nominee to the Supreme Court has appeared and testified before the Judiciary Committee. While [ believe that a nominee's record should be thoroughly scrutinized by this commiUee, [ hope you will not think it presumptuous on my part to suggest that neither such examination nor the best interests of the Supreme Court will be helped by the personal participation of the nominee himself. 1should think it improper for a nominee no less than for a member of the Supreme Court to express his views on controversiai poLitical issues affecting the Court. Myattitude and outlook on relevant matters have been thoroughly expressed over a period of years and are easily accessible. 1shouid think it not only in bad taste but inconsistent with the duties of the office for which 1 have been nominated for me to attempt ta supplement my past record by present declarations. That is ail 1 have to say.309

Following tlùs statement, questions arising from the testimony of earlier \\

which related to the nominee's purported left-wing bias, were put to Frankfurter. The climax of

this portion of the hearings carne when Senator Pat McCarran asked if Frankfurter '1Jelieved in

the doctrines of Karl Marx." Frankfurter's response earned him a wo minute ovation:

Senator, 1do not believe that you have ever taken an oath to support the Constitution of the United States with Jess reservations than l have or would have now, nor do [ believe that you are more attached ta the theories and practices of Americanism than l am. [rest my answer on that statement.31D

At the end of the hearing, Chairman Neely stated that since several witnesses had attempted to

paint Frankfurter as a Communist, he would ask hirn directIy: "Are you a Communist, or have

you ever been one?" Frankfurter responded tha~ he was not and had never been a Communist,

whereupon Senator McCarran asked whether he meant that he had never been enrolled as a rnernber. Frankfurter replied. forcefully: "1 mean much more than that. 1mean that 1have never been enrolled, that 1 have never been qualified to be enrolled, because that does not represent

my view oflife, nor my viewofgovemment."311

309 Nomination of Felix Frankfurter, Hearings Before a 5ubcommiHee ofthe Senate Committee on Uze fudiciary, 76th Cong., lst Sess. 107-8 (1939) [hereinafter Frankfllrter Hearingsl. See a/50 Freund, supra note 286, at 1159; Thorpe, supra note 303, at 377. 310 Quoted in Harris, supra note 61, at 310. 311 Frankfurter Hearings, supra note 309, at 127-8. 74

Professor Frankfurter made the most ofhis testimony, in the end winning the unanimous

support of the Senate. Like Attorney General Stone before him, Frankfurter had beaten the

senators at their own game. "In fact, l took charge," he remembered, U[i]t was the only thing to

do."312 Frankfurter did weil because members of the public and press \\Tho attended his

hearings ralliecl behind hirn. Though he managed to use the crowd to his advantage, however,

he did find the open hearings disturbing: "I thought that it would justbe a Little room where

we'd sit around. 1 found this was Madison Square Garden."313

Frankfurter was not alone. Two years earlier, during the Hugo Black nomination, Senator

Tom Connally ofTexas had opposed a motion to hold public hearings. "Hearings are for the

information of the Committee," Connally told his colleagues, "not for the purpose of public

amusement; not to have a legislative rodeo so that everybody may come in and have a good

time."314 Senator Connally's words apparently fell on deaf ears, for after Frankfurter, 5upreme

Court nominees appeared much more frequently.315

With the nomination ofShennan Minton during President Harry Truman's second term, the question ofhaving a Supreme Court nominee appear before the Judiciary Committee was revisited. A New Dealloyalist, Minton was appointed to the Seventh Circuit Court of

Appeals by President Franklin Roosevelt after losing rus bid for another tenu as US. Senator from Indiana in 1940. The combination of Minton's prior service in the Senate, along with the endorsement of the state's two sitting Republican senators, should have been enough to recommend rus confirmation, but Minton was opposed by the pO\\Terful senator from Michigan,

312 FEUX FRANKFURTER REMINISCES, 285(H. Phillips cd. 1960), quoted in Freund, supra note 286 at 1158. 313 Freund, supra note 286, at 1160. 314 81 Congo Rec. 8964 (1937) (statement of Senator Connally), quoted in Harris, supra note 61, at 308; Frc~J'ld, supra note 286, at 1160. 315 80th William Douglas and Frank Murphy, nominatcd in 1939 and 1940 respcetivcly, appearcd voluntarily. Attorney General Robert Jackson's appearance in 1941 was, like that of Harlan Stone, compclled by mcmbcrs of the Senate. Jackson's testimony was compellcd by Scnator Millard Tydings of Maryland, who qucstioned Jackson exhaustively about why theJustice Departmcnt had failed to prosecute two columnists for libellingTydings. Jackson's rcsponse apparently satisfied everyone but Tydings, who registcred the only negative vote against him, seeThorpe, supra note 303, at 378 for the entire story. 75

Homer Ferguson. Ferguson used his influence ta introduce a motion before the Judiciary

Conunittee to compel the testimony ofJudge Minton. The motion passed 5-4, but Minton faiIed

to appear on the prescnbed day, instead sending the following note:

[ of course desire to cooperate fully with the committee at all limes but [ feel that personal participation by the nominee in committee proceedings relating to his nomination presents a serious question of propriety, particularly when r might be required to express my views on highly controversial and litigious issues affecting the Court .... My record as a Senator is a public record and open to scrutiny by the Committee. H, or course, has no relationship to my record as a judge of the Seventh Circuit Court of Appeals. However, my judicial record is aIso available for examination. In my opinion, that record speaks for itself, as does my record as Senator. . .. As Assistant lvfajority Whip of the Senate, 1was a strong partisan and supported the administration. 1do not deny this. The record was made, and 1stand upon il. 1 have made mistakes ... When 1 was a young man playing baseball and football, l strongly supported my team. l was then a partisan. But later when 1refereed teams 1 had no team. 1 had no side. The same is true when l left the political arena and assumed the bench. Cases must be decided under applicable law and upon the record as to where the right lies .... While it is my desire to comply with any reasonable request of the committee, 1 am constrained at this time to cali to its attention the serious question of propriety and policy which 1 have tried to outline in this letter.316

The fact that Minton had the support of rus state's senators muted the possibility of serious partisan opposition, and two days after receiving his note, the Judiciary Committee, bolstered by the return of three Democratie members, voted 9-3 against compelling his testimony.317 To underscore the point, the Committee voted to recornmend confirmation by a 9-

2 margine When the Committee's recommendation reached the Senate floor the following day, however, two prominent Republicans warned against the precedent being set. Senator Ferguson of Michigan explained the importance of calling Minton in constitutional tenus:

[RJesearch has not indicated whether or not there are precedents for the refusaI of a nominee ta the Supreme Court ta appear before a Senate committee, and particularly the Judiciary Committee. Any such incident if it has occurred in the past apparently is not a matter of record. Judge Minton's letter adopts a Line of reasoning which closely parallels that statement of Justice Frankfurter's There is suggested a development which 1 think is a most dangerous threat to the processes of representative government318

Ferguson was apparently motivated by political calculations, as he revealed later in ms speech:

316 Congo Rec. 13803 (1949), quoted in id. at 38l. 317 Id. at 382. 318 Congo Rcc. 13803 (1949), reprinted in id. 382. 76

It has been made a part ofJudicial Court record that since 1933, 184 out of 192 appointments to the Federal bench, or about 96 percent have been from one political party, the Democratie party. This is an imbalance which undermines full faith in the judiciary.319

Though Ferguson's credibility \-vas undermined by the clearly political nature ofhis attack,

the words of his Republican colleague Wayne Morse ofOregon seemed to be motivated by a

genuine concern for the integrity ofthe process. "I am moving to readmit this nomination ... on

entirely different grounds," Morse said:

The tendency in the Senate to build up precedent by precedent of reporting nominations to the floor of the Senate without inquiry on the part of the Judiciary Committee in the sense of calling the nominee hirnself before the committee ... is a precedent and a trend l think should be stopped, because [ do not think it is consistent with the true spirit of the advice-and-consent clause of the Constitution.320

IfMorse claimed to divine new insights into the Constitution, or into the intentions of the

Framers, he failed to point out what they were. And, as acting-Chainnan of the Judiciary

Committee Harvey Kilgore pointed out, the Committee's decision not to compel Judge Minton's testimony clearly validated Minton's position:

After hearing the arguments, the Committee ... passed on the protest which was quoted by Judge Minton in rus letter, the protest of ... Frankfurter against the idea trying to calI a nominee to the Supreme Court before the Committee and commit himself on various matters, recant his political doctrines, and ail that sort of thing. That was the reason for my vote, and the vote of every other member of the Committee on the motion ta reconsider [calling MintonJ, although l had before that time also voted against requesting . '. Minton's appearance because we do not follow such a practice in that Committee and never have since [ have been a member of it.321

In the end, the full Senate voted against recommitting the nomination by a 45-21 vote, and

Minton was confinned, 48-16.322

Judge ~finton's struggle proved to he the last stand for opponents of personal appearances. Though the next nOITÙnee to the Court, fonner California Governor Earl Warren was not called to appear, the Committee requested the appearance ofJohn Marshall Harlan

319 Congo Rec. 137%-97 (1949). Ferguson daimed that 184 of192 Roosevelt's appointments to the federal bench, or96 percent, had come from the ranks ofthe Democratie party, reprinted in id. at 382. 320 Congo Rec. at 13797 (1949), reprinted in id. at 383. 321 Congo Rec. 13799 (1949), reprinted in id. 322 Freund, supra note 286, at 1161. 77

and every subsequentnominee.323 In the less than twenty years between the Parker and Minton

nominations, the momentum ofhistory had slùfted.324 As historian Paul Freund commented,

"Parker desired to testify and was refused; Minton was asked to testify and only reluctantly

\-vas rus refusaI accepted."325

C. Questions Posed To Supreme Court Nominees

As the testimony ofindividual nominees became an integraI part of the confirmation

process, the scope and Length of the questions posed to prospective Justices changed. In 1925,

senators had, by and large, limited their inquiry into Harlan Stone's eonduet to questions about

the Wheeler investigation.326 Similarly, years later Professor FrankIurter responded to witnesses

who claimed he was a Communist, but would not respond to questions ofsubstantive law.327

By the 1950s external pressures were pushing the Court into the unchartered waters ofjudicial

activism. Naturally, as the Court began to have an increasing effect on public policy, control

over its membership became increasingly important to the Senate. Unlike its Reconstruction

counterpart, however, the Senate of the 1950s could not alter the size or composition of the

Court through crass political manipulation. Everyone remembered the political fallout of

President Franklin Roosevelt's caurt-packing scheme,328 and the growth of Executive pa\ver

ushered inby Theodore Roosevelt made a repeat of the Reconstruction pattern unlikely. The

Senate was thus forced ta find new and innovative ways to exert control over appointments.

To this end, the questioning of naminees proved to be a very useful taol.

The first nominee ta field questions about a specifie case was John Marshall Harlan in

323 Ross, supra note 303, at 119. According to Professol" Ronald Rotunda, "[t}oday ... it would be unheard of for a 5upreme Court nominee to refuse to be questioned in person by the Judiciary Committee," R. Rotunda, The Confirmation Process for 511preme Court {ustices in the !Yfodem Era, 37 EMORY LJ. 561 (1988). 324 Freund, supra note 286, at 1162. 325 [do at 1161. 326 See supra notes 302 to 305 and accompanying text. 327 See supra notes 307 to 313 and accompanying text. 328 For a discussion ofPresident Franklin Roosevelt's faiJed scheme to pack the Court, see Michael Nelson, Court Packing as a Failure of Presidential Leadership, reprinted in HALL, supra note 1, at 226. 78

1955. Republican senators interrogated Harlan about ms views on the Steel Seizure Case.329 In

the dissenting opinion in that case, ChiefJustice Fred Vinson had argued that PresidentTruman

could legally seize control of the nation's steel nùlls under the U.N. Charter.330 Several senators

viewed tlùs opinion as an assault on national sovereignty, and questioned Harlan to see that his

views comported \vith their own.331 Harlan refused to discuss the case, however, stating "1

don't think it would be proper for me to comment on that for reasons that you can obviously

perceive."332 These reasons were not "obvious" to the senators, nor were theyapparently

obvious to Harlan, who went on to give a rambling explanation of rus views.333 In the end no

senator proved willing to force the issue, and Harlan eventually mollified rus critics by

expressing rus helief in the supremacy of the Constitution and defending the notion of American

sovereignty.334

Compared to William Brennan, Harlan was treated with kid gloves. Appainted by

President Dwight O. Eisenhower on September 29, 1956, Justice Brennan left the New Jersey

Supreme Court to accept an interim place on the Supreme Court. When the Judiciary Committee

began its investigation into ms nomination in early 1957, Brennan was called ta appear.

Though he appeared voluntarily, Brennan was treated like a hostile witness. In addition to

facing the questions of the Judiciary Committee, Brennan also had to field the questions of

329 Youngstown 5/reet & Tube Co. v. 5awyer, 343 V.S. 579 (1952). 330 Vinson was joined by Justices Stanley F. Reed and Sherman Minton, see DAVID McCULLouCH, TRUMAN, 900­ 901 (1992). 331 According to one senator, the dissenters in the case had "found that the President had the power to seize the steel mills ... to meet his obligation to the United Nations, not to the Constitution.... ," Hearings Before the Committee on the fudiciary, United States Senote; on the Nomination ofJolm Marshall Harlan, of New York, ta be an Associate Justice ofthe Supreme Court oft/ze United States, 84th Cong., 1st Sess. 167 (l955)[hereinafter Harlan Hearingsl, quatetf. in Ross, supra note 303, at 126. 332 Ross, supra note 303, at 126. 333 Harlan offered the following explanation of his views: "1 don't think that the proprieties of my commenting upon decisions ofthe 5upreme Court, for which 1have becn nominated, as to questions that may arise in the future that 1may have to siton if my nomination is confirmed-it is something that is a matter of propriety that [ can be asked to engage in, and 1hope that you will respect that," id. at 126-7. • 334 Thorpe, supra note 303, at 384. 79

Senator Joseph R. McCarthy ofWisconsin.335 McCarthy clearly had an axe to grind against

Brennan, who had referred to Congressional investigations ofCommunists as "Salem witch trials," "Inquisitions," and "barbarism," but Brennan refused to answer rus questions about whether Communism was a political party or an international conspiracy.336 With prompting

frOID Senator Joseph Mahoney of Wyoming, Brennan did concede that anti-Communist probes were a Uvital function ofCongress."337 Eventually, Brennan won the unanimous recommendation of the Judiciary Committee. When the full Senate voted on March 20, only

Senator McCarthy opposed confinnation.338

Solicitor General Thurgood Marshall, the first black man appointed to the Supreme Court, faced severa! days of hostile questioning from members of the Committee during rus 1967 confinnation hearings. SenatorJohn rvrcOellan questioned Marshall extensively on Miranda v.

Arizona,339 insisting that the Senate needed "to have sorne idea, at least a glimpse, sorne impression as to the trend of the thinking and the philosophy" of the nominee before it passed judgement.340 Marshall refused to answer Senator McOellan, though, claiming that the "many cases pending in the Suprerne Court ... on variations of the so-called Miranda rule" precluded him from answeringsuch questions.341 Marshall's refusal to discuss issues of substance was so complete that a frustrated Senator Sam Ervin told him "ifyou are not going to ans\'ver a question about anything which might possibly come before the Supreme Court sorne time in the future, l cannot ask you a single question about anything that is relevant to this inquiry."342

335 Despite being formally censured by the Senate for his overzealous prosecution ofalleged Communists in 1954, the Judiàary Committee voted unanimously to allowSenator McCarthy to cross-examineJustice Brennan, id. at 385. 336 (do 337 THE NEW YORK TIMES, 27 February 1957, at 15, col. 4, quoted in id. 338 THE NEW YORK TrMES, 20 March 1957, at 38, col. 4. 339 384 U.5. 436 (1966). 340 Hearings Before the Committee on the Judiciary, United States Senate, on the Nomination of Tllllrgood Mars/zaU, of New York, ta be an Associate Justice of the Supreme Court of the United States, 90th Cong., lst Sess. 8-9 (1967) rhereinafter Marshall Hearingsl. 341 Id. at 9. 342 Id. 80 • Senator Ervin suggested that if Marshall had no opinions to share about the Constitution, he should not be confirmed. "1 think it would be wrong for me to give [an] opinion at this time,"

Marshall replied. 'rwhen the case cornes before the Court, that will be the time."343

As the questions asked by Senator McOelIan saon revealed, the jousting between Marshall

and rus inquisitors was not really about qualifications at all, but instead about the Senate's role

in the confirmation process. Marshall had the "background," "training," and the "ability" to be

a Supreme Court Justice, McOellan conceded,

But l do not care who it is who cornes before this committee hereafter for the Suprerne Court; l am going to try to find out something about their philosophy and not take the chances l have taken in the pasto [mean that. This is a fundamental principle and an issue here that l think 1 have a grave duty to perform.344

McOelian's views were not shared by all in the senate. Senator Edward Kennedy, for one, took

issue with McOellan:

l believe it is recognized by most senators that we are not charged with the responsibility of approving a man to be Associate Justice of the Supreme Court only if his views always coincide with our own. We are not seeking a nominee for the Suprerne Court who will express the majority view of the Senate on every given issue, or on a given issue of fundamental importance. We are interested really in knowing whether the nominee has the background, experience, qualifications, temperament and integrity to handle this most sensitive, important, responsible job.345

Apparently, a majority in the Senate agreed with Senator Kennedy, because Marshall won

confirmation by a comfortahle 69-11 margin despite ms refusal to answer many questions.346

The following year, 1968, saw perhaps the most bizarre confinnation hearing in supreme

Court history when Justice Abe Fortas appeared before the Committee. Confirrned severa!

years earlier as an Associate Justice, Fortas was called to answer questions after President

Johnson nominated mm ta replace the retiring Earl Warren as ChiefJustice. Though he voiced

strong opinions that the questioning of a sitting Justice \vould violate the constitutional doctrine

343 Ed. at 53. 344 Ed. at 10. 345 Quoted in Friedman,supra note 1, at 90. 346 MarshaH was rccommended by an 11-5 vote of the Judiciary Committee. AlI five negative votes were cast by southem senators,Thorpe, supra note 303, at 388. 81

of separation of powers, Fartas nonetheless appeared before the Committee in JuIy, 1968.347

Reaction to Fortas's concerns varied: On the one hand, Senator Philip Hart called the

appearance of a sitting Justice ua practice which l think is unfortunate," and urged ms

colleagues to uexercise legislative restraint, and .... not ta cross-examïne."348 On the other

hand, a majority agreed with Albert Gore ofTennessee that the appearance of the nominee was

a precedent that they welcomed. Even this group, however, agreed with Senator Hart that

"there are severe limitations upon the kind ofquestioning that a legislative committee may wish

or properly submit to a sitting justice of the Supreme Court."349

When it came to the Fortas hearings, however, the "legislative restraint" that Senator Hart

had counselled was nowhere in evidence. Over several days ofquestioning, Justice Fortas was asked to comment on more than a dozen cases decided both before and while he was on the

Court.350 Due to concerns that his spontaneous testimony might lead to imprudent and unwise

remarks, Fortas made it clear at the outset that he would not Ildiscuss in this forum opinions of the Courtof which l am a member."351 But under the intense scrutiny of the Committee, Fortas seemed to trip over himself. Though he refused to respond to Senator Strom Thurmond's question about the 1964 Escobedo v. Illinois352 decision, explaining: uI was not on the Court at that time,"353 Fortas did volunteer an explanation as to why he had recently joined the rnajority

347 Hearings Befare the Committee on tlte [udiciary, United States Sellate, on the Nomination of Abe Fartas, of Tennessee, ta be Chief Justice of the United States and Homer Thornberry, of Texas, ta be an Associate Justice of the Supreme Court afthe United States, 90th Cong., 2nd Sess. 122, 182,214-15 (1968) [hereinafter Hearings on Fartas and Thanlberryl. No sittingJustice had everappeared before the Cornmittee as a nominee, and only one incumbentJustice, Charles Evans Hughes, who testified against President Roosevclt's court padang plan in 193ï, had ever appeared before a Senatecommittee, Ross, supra note 303, at 129. 348 Hearing aIl Fartas and Thomberry, supra note 347, at 101-3. 349 Ed. at 100. 350 For a listing of these cases, see Ross, supra note 303, at 130. 351 Hearings on Fartas and Thornberry, supra note 347, at 214. 352 378 U.5. 478 (1964). 353 Hearings an Fartas and TlJarnbeny, supra note 347, at192. Thunnond commented upon the inconsistency ofthe Fortas position, saying, III thought if YOll did not want to comment on the decisions YOll did participate in, you might give us the benefit ofyour opinion for the common good, for the public good ofthe people ofthis country, on a decision in which you did not participate," id. 82 in Warden v. Hayden. 354

The Fortas episode convincingly demonstrated the pitfalls associated with the Senate's expanding role in the judicial selection process. As the Committee hearings began to look less like a fact-finding mission and more like an inquisition, nominees like Fortas were caught in a

Catch 22: If they engaged the Committee, in a discussion of specific cases, as they were baited to do, they undennined the constitutional doctrine of the separation of powers by calling their judicial independence into question.355 However, if they repeatedly refused to answer the questions posed to them, they ran the risk of appearing ta have something to hide. Senator

Thurmond attempted to use the latter truth to his advantage during the Fortas hearings: In response to Justice Fortas's repeated refusal to answer rus questions, Senator Thurmond warned

Fortas that "every American ... who is going to read the paper tomorrow is going to see that you refused today, that you failed today, to answer questions of vital importance to them, and they are going to get an impression, and maybe rightly 50, that you are using this as a screen or an excuse not to get into these matlers."356 Another related problern was the danger that the

Justices would use the occasion of their testimony to pander to the Committee. As one observer noted of the Fortas testimony, UFortas voluntarily discussed cases about which he had not been asked, especially when it suited rus interests to do 50."357

After Fortas, nominees found it increasingly difficult to resist the pull to answer the

354 387 US. 294 (1967). Fortas was apparently attempting to convince the Committee that the Warren Court had actuaIly been tougher on criminals than its critics charged. The E-layden decision overruled the 1921 Gouled v. United States decision,255 V.S. 298, which prohibited police from seizing evidentiary materïal under the Fourth Amendment when they made an authorized search. 355 Fortas was acutcly aware of this problem, tclling the Committee that hc would "not he an instrumentby which the separation of powers spcdfied in our constitution is callcd into question." Hearings on Fortas and Thonrberry, supra note 347, at 214. Even so, he did discuss at lcast one case upon which he had sat with ScnatlJr Thurmond, see previous noteand élccompanying text. 356 Hearings on fartas and TIrornberry, supra note 347 Olt 183. The next day, The Ne-UJ York Times validated Thurmond's waming, noting that the day's events "reminded many observers in the statelyScnatc Caucus Room ofthe antisubversive hearings of a decade ago when witnesscs were forced to plead the Fifth Amcndment against self­ incrimination again and again in rcsponse to questions about their associations," THENEWYoRKTrMFS,]uly 19, 1968 at 1, col. 2, quoted in Thorpe, supra note 303, at 393. 357 Ross, supra note 303, at 131. 83

Committee's questions. \Vhile the next four nominees-Warren Burger, Oement Haynesworth,

Harold Carswell and Harry Blackm.un-were not scrutinized based on their judicial decisions and opinions,358 all subsequent nominees have been. Lewis Powell, the fonner ABA president tapped by President Richard Nixon to replace Justice Hugo Black, faced a particu.larly indecorous line of questioning. As a member of the President's Commission on Law

Enforcement and the Administration ofJustice, Powell had criticized the Supreme Court, arguing that the Miranda and Escobedo decisions had strengthened the rights of the accused at the expense of law enforcement offici.als.359 Now in the witness chair, Powell was asked by

Senator Charles Mathias whether he believed the Court should vote to overrule the two decisions.360 Powell declined to answer Senator Mathias's question directly,361 but the fact that the question had been asked signalled a remarkable shift in the Senate's response to Supreme

Court nominees. Thirty years earlier, no senator dared to ask Felix Frankfurter to comment on a particular case. Now, however, senators seemed comfortahle to ask not only "What do you think.?", but "How will you vote?"

Like previous nominees, William Rehnquist aIso refused to discuss cases likely to come before the Court. In answer to Senator Birch Bayh's question about the Supreme Court's decision in Griswold v. Connecticut,362 Rehnquist stated: "[tJO say whether l agree with the doctrine of a particular case or not ... would he entirely inappropriate for a nominee."363

358 Though all four nominees had prior judidal experience, mitigating factors caused the Committee ta foeus on other issues during their hearings. 5ince neither Burger nor Blackmun had issued particularly controversial opinions, both easily won confirmation by respective votes of 74-3 and 94-0. On the other hand, both Haynesworth and Carswell were considered to be nominees ofsuch low calibre that the Committee focussed on competence, integrity and judicial fitness evcntually rcjecting both men easily, see id. at 131-2. 359 Hearings BefOTe the Serrate Committee on tlte Judiciary, United States Senate, orr the Nominations of William Hubbs ReJmquist, of Arizona, and Lc'wis F. Powell, Jr., of Virginia, to be Associate Justices of the Supreme Court of the United States,92nd Cong., lst Sess. 231 (1971) [hereinafter Hearings on ReJmquist and Powell]. 360 Id. 361 Powell did concede that he thought the minority opinions on the two cases had been stronger, but he stopped well shortofpledging to overtum the dedsions, id. 362 381 U.5. 479 (1965). In response to Scnator Bayh's question, Rehnquist commented: "[t]o say whether l agree with the doctrine of that particular case or not ... would be entirely inappropriate for a nominee," Hearings on Rehnquist and Powell, supra note 359, at 164. 363 Ed. at 164. 84

Under pressure from other senators, Rehnquist did discuss rus views on Brown v. Board of

Education,364 but only in the most generaI way. What is rnost interesting about the Rehnquist hearings is the breakdown ofquestions faced by the nominee. Of the more than 400 questions put to Rehnquist, at least ninety percent related to his constitutionaI philosophy.365 While

Rehnquist was careful not to compromise his independence with his ans,vers, the volume of questions relating to the nominee's substantive views aIso signalled a real change in the Senate's evaluation of Supreme Court candidates.

During the hearings on Sandra Day O'Connor and Antonin Scalia, this trend continued.

Judge O'Connor explained at the outset of her confirmation hearings that she would refuse to answer any questions that compromised her judicial independence:

1do not believe that as a nominee 1can teU you how l might vote on a particular issue which may come before the Court, or endorse or criticize specifie 5upreme Court decisions which may well come before the Court again. To do so would mean that 1 have prejudged the matter ....366

Despite this clarification, however, Judge O'Connor was asked to comment on severa! recent cases, including Roe v. Wade.367 Specifically, Senator East asked her whether she agreed with

Justice Byron White's dissent in Roe v. Wade, which pilloried the majority opinion as "an improvident and extravagant exercise of the power of judicial review ...."368 O'CoIUlor replied:

For me to join that criticism would perhaps be perceived as an improper exercise of my function right now, as a nominee to the Court, for the simple reason that 1suspect we have not seen the last of that doctrine, or holding, or case, and that indeed we are very likely to have the matter come back before the Court in one form or another.369

364 349 U.S. 294 (1954). 365 This data is based on a empirical study that dassified questions put to recentSuprcme Court nominees by the JudidaryCommittee into three categories: charader, competency, and constitutionalism,see Guliuzza et. al., supra note 6, at 428.

366 Hearings Before the Committee 011 the judiciary, United States Senate, on the Nomination of Sandra Day O'Connor ta be an Associate Justice of the Supreme Court of the United States, 97th Cong., lst Sess. 57-58 (1981) [hereinafter O'Connor Hearings]. 367 410 U.S. 113 (1973). 368 O'Connor Hearings, supra note 366, at 107. 369 Id. 8S

O'Connor did engage the senators in a discussion of cases she felt had '1Jeen rather weil

decided and are not likely to be coming back. before the Court directiy in any closely related

fonn on the merits."370 She remained steadfast, ho~vever, in her refusaI to discuss anything that

mightcompronùseher independence.

Judge Scalia's confinnation followed along similar lines. In a discussion ofthe proper

scope of the Senate's raIe in the confirmation process, ScaIia staked out a position similar to

previous nonùnees, stating IIthe only safe position that 1 can take in conscience is simply not ta

say that there is any particular case regarding which l would absolutely vote agah'1st a litigant

who urges a position that is contrary to it."371 Judge Scalia refused to discuss certain

controversial cases, including Atliranda v. Anzona,372 with the Committee, and aIso refused to

discuss various issues like the imposition of limits on post-trial appeals in death penalty

cases.373 Despite his refusals, however, Scalia was repeatedly asked by certain senators to take

positions on issues destined to come before the Court. At one point, Senator Edward Kennedy

asked Judge Scalia, lIif you [are] confinned, do you expect to overrule Roe v. Wade?" Scalia

responded, Il r do not think it would be proper for me to answer that question."374 Unlike previous nominees including Thurgood Marshall, Sandra Day O'Connor, and William

Rehnquist, however, Scalia refused to comment on even on the most fundamental Supreme

Court cases. In response ta a question posed by Senatar Strom Thurmond, Scalia toId the senator III do not think l should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison. "375 But while he was unwilling to give the Committee even a glimpse into his substantive politicaI views, Judge Scalia was quite

370 Id. at 160. 371 Hearings Before the Committee on the Judiciary, United States Senate, on the Nomination of Judge Antonin Scalia, to be an Associate Justice oftlze SlIpreme COllrt oftlze United States, 99th Cong., lst. Sess. 86-87(1986) [hereinafter Scalia Hearings 1. 372 Id. at 34. 373 Id. at 35. 374 Id. at 37. 375 Id. at 33. 86

forthcoming about ms judicial philosophy. /II think it is fair to say that you would not regard

me as someone who would be likely to use the phrase living Constitution," he told Senator

Joseph Biden.376 When pressed by Senator Kennedy about which Supreme Court precedents, if

any, he would vote to overrule, Judge Scalia elaborated on ms philosophy of the role ofa judge:

/II assure you, l have no agenda. l am not going to the Court with a list of things that l want to

do. My only agenda is to be a good judge. l decide the cases brought before me...L\nd l try to

decide them according to the law as best as l can figure it out ...."377

D. The Bork Hearings

Appeals Court Judge Robert Bork took a much different approach.378 Over five days of

exhaustive hearings wlùch included nearly thirty hours of testimony,379 Judge Bork patiently

listened to, and answered, over four hundred questions relating to rus substantive views on the

Constitution.380 Judge Bork discussed his opinions on a wide-range of issues destined to come

before the Court again, including the right to privacy,381 the First Amendment,382 and due

process.383 He aIso spoke quite specifically about severa! Supreme Court cases, issuing

statements like /lGriswoLd v. Connecticut does net sustain its burden," and "Roe v. Wade contains

a1most no legal reasoning."384 Because he deviated from the response pattern. adopted by previous nominees, many observers attempted to blame Judge Bork's rejection on himself. Sorne conunentators even argued thatJudge Bork hanned the integrity of the confirmation process by

376 Id. at 48. 377 Id. at 38. 378 Ross, supra note 303, at 139 (''Bork radically departed from the traditionai reticence of Supreme Court nominees by frecly answering most questions, induding numcrous questions conccrning past decisions ofthe Supreme Court"). 379 Bork Hearings, supra note 4, at 6188 (Majority Report on the Nomination). 380 Guliuzza, et. al., supra note 6, at 426-429. See also Bork Hearings generally. 381 Bork Hearings, supra note 4, at 87. 382 Id. at 280-83 383 rd. at 291. 384 Qlloted in Steven Lubet, Confirmation Ethics: President Reagan's Nomirlees ta the United States Sllpreme COllrt, 13 HARVARD JOURNAL OF LAw & PUBUC POUcy 229 (1990). 87 being too open in his responses to the questions ofthe Judiciary Committee.385 Still others suggested. that perhaps Borkwas a unique nominee, and thus deserved special treatment from the Judiciary Committee.386 While these explanations may seem plausible, however, they tend to focus attention on the product of the Bork nomination rather than on the process. In the end,

Judge Bork was not rejected because he was a unique nominee, or because he was tao forthright with the Judicïary Committee. Judge Bork was rejected because the majority of the Senate

Judiciary Committee considered and rejected rus substantive political views. In this regard, as

Bruce Fein has noted, IIthe Senate's failure to confirm Judge Robert Bork as a 5upreme Court

Justice resulted from a flagrant rejection of the Senate's proper role in the confirmation process."387

While it is true that Judge Bork deviated from the response pattern employed by virtually all previous nominees in this century, rus responses were clearly conditioned by the tenor of the

Senate's inquiry into rus nomination. Only a few hours after President Reagan announced the

Bork nomination, Senator Edward Kennedy of Massachusetts was on the Senate floor delivering these remarks about Judge BorIe

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police couId break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored al the whim or [sic] government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are al the heart of our democracy)88

Senator Kennedy's comments were clearly not designed to lead to temperate and illuminating hearings on the Bork nomination, but instead, as Senator Kennedy later admitted, IIto sound the alarm and hoId people in their places until we could get [opposition] material together. l was

385 Su, e.g., id. at 230. 386 See, eg., Dworkin, supra note 5, at lOlo 387 See Fein, supra note 8, at 687. 388 133 Cong Rec. 59188-9189 .(daily ed. July, 1, 1987)(statement ofSen. Kennedy). 88 confident we could win this one."389 As his IIBork's America" speech and other comments revealed, Senator Kennedy had made up his mind about the nominee long before the hearings.390

The primary goal of the hearings was thus not to enlighten, but to consolidate public support against the nominee.391 Judge Bork was keeIÙY aware of this: IIIt \vas apparent from Senator

Kennedy's speech after the nomination," Bork later wrote, "that positions l had taken in the past would ... be radically misrepresented. Ifl did not explain at the hearings, those misrepresentations would stand unanswered."392 5ïnce it was clear fram the outset that the success of Bork's confinnation ~vas linked to ms ability to respond to the public charges made by Senator Kennedy prior to the hearings, it would be unfair to hold Judge Bork to the standard of previous nominees. Judge Bork felt a pressure to respond to the detailed questions of the

Judiciary Committee in a way that previous nominees had not. IfJudge Bork hoped that rus answers would clear up the "misrepresentations"393 ofSenator Kennedy and others, however, the hearings were to prove mm wrong. Though severa! senators stated at the outset that the purpose of the Bork hearings was to examine Judge Bork's judicial philosophy,394 it became clear that many members of the Judiciary

Committee were unwilling or unable to limit their questions to this general area. While Bork tried to sell the senators on his views on the proper role of the judge,395 attenti<;>n invariably

389 Quoted in BRüNNER, supra note 3, at 100. 390 See, e.g., Bork Hearings, supra note 4, at32-35 (Statement ofSenator Kennedy). This degrec ofdosemindedness was exhibited by many Senators throughout the Bork confirmation process. As Judge Bork notes, many senators announced their opposition to him long before the Senate debate on the nomination was scheduled to begin, BORK, supra note 10, at 309. 391 See, e.g., Bork Hearings, supra note 4, at 59 (Statement ofSenator Charles Grassley)(''The partisans who act as 'generals' in this 'war' ofmud slinging have had sorne success. In fact, sorne members ofthe Senate have outflanked each other for the honor oftaking the most extrcme position, even before the first day ofthe hearings!"). 392 BoRK, supra note 10, at 279. 393 rd. 394 See, e.g., Bork Hearings, supra note 4, at 52,95 (Statements ofSenators Dennis DeConcini and Joseph Biden, respectively). 395 Forexample,Judge Bork issued the following statementabout the importance ofjudicial philosophy: The judge's authority derives from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of ils courts, acc(!pts even decisions that nullify the laws a majority of the electorate or their representatives votcd for. The judge, to deserv~ that trust and that authority, must be evcry bit as governed by law as is the Congress, the President, the state Governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will 89

shifted away from rus judicial philosophy and towards his political views. For example,

though Senator Dennis DeConcini opened by telling Judge Bork "I will base my decision on you

... onyour ability and experience, your temperarnent, your integrity, and whether or not l

believe you will decide the cases before you based on the Constitution,"J96 during the hearings

he employed a different standard. Throughout rus questioning ofJudge Bork, Senator

DeConcini focussed on Judge Bodés political views, at one point asking mm, "w hen did you

cease being a libertarian?"397 As conservative academic Grover Rees later noted, DeConcini fell

into that group of senators who "seemed detennined to obliterate any distinction between

judicial philosophy and political ideology."398 While senators like DeConcini at least

attempted to frame the debate in terms of judicial philosophy, many senators felt no need to

distinguish between political ideology and judicial philosophy. Senators Ted Kennedy, Joesph

Biden and Howard Metzenbaum, for example, followed the model for a more active Senate role

in the confirmation process laid out by Professor Laurence Tribe in rus 1985 book God Save This

Honorable Court.399 As journalist Ethan Bronner has noted, Professor Tribe became the

"intel1ectual architect" of the strategy used by Judiciary Committee opponents to defeat Judge

Bork.400 While Tribe's thesis was well-received by senators eager to use it to their political

advantage, Tribe's historical conclusions have been found wanting by several reviewers.401

Specifically, Tribe's argument that the early history ofSupreme Court confinnations suggests

that the Founders supported the broad ideological review undertaken by today'5 Senate has

justice bc done and the frccdom of Americans assured. id. at 103-4. 396 Id. at 52. 397 Id. at 252. 398 Rees, supra note 7, and accompanying text. See a/sa, Myers, The Raie of Special Interest Groups in tlze Sllpreme Court Nomination ofRobert Bork, 17 HAsrINCSJOURNALOFC0NSfITU110NAL LAw 414 (1990). 399 shortly after the publication of this book, senators Kennedy, Biden and Metzenbaum went to dinner with Professor Tribe to talk about his thesis, BRONNER, supra note 3, at 129-33. 400 Id. at 127. 401 See, e.g., Friedman, supra note 13, and amn Hatch, Save n,is Court From What? 99 HARV. L. REY. 1347 (1986) (review ofTRIBE, Gao SAVE THIS HONORABLE COURT). • beenseriously challenged.402 The effort to broaden the Senate's role in the confirmation process traces its roots back

weIl before the Bork hearings or the publication of God Save This Honorable Court. The Senate's

sCIUtiny ofjudicial nominations has gradually increased during the past century, as nominees

were called, first to appear, and Iater to testify in ever increasing detaii about their attitudes on

various cases and issues. The problems associated with this approach have been chronicled,

specifically during this century, by nominees and senators alike, but as Professor Paul Freund

has noted, the "momentum of history" has made it very difficult for senators to reconsider tItis

precedent.403 An exanùnation of many of the reasons why the campaign against Bork was

successful, including the role pIayed by interest groups and the media,404 is beyond the scope of

this thesis, but it is important to note that the questions fieided by Judge Bork are not dissimilar

to those fieided by other recent nominees. As Professors Frank Guliuzza, Daniel Reagan, and

David Barrett have noted in a recent empirical study ofquestions posed to Supreme Court

nominees, "Bork is simply not unique when compared with the entire sample ofnominees. In

fact, Bork's nomination looks remarkably similar to severa! others in the set."405 Based upon

this and previous evidence, it seems as difficult to avoid the conclusion that the rejection of

Judge Bork marked the inevitable culmination of the Senate's efforts to increase its share of

power overSupreme Court nominations.

Before concluding this section, a word or two are necessary to explain why the modem

Senate has been so persistent in its efforts to gain power over Supreme Court appointments. In

his opening statement during the Bork hearings, SenatorCharles Grassiey suggested that

"[p]erhaps this furor during the summer of 1987 only confirms how far the judiciary has drifted

402 See, e.g., Rader, supra note 35, at 788. 403 Freund, supra note 286, at 1162 (1988). 404 A good treatment ofsorne ofthese issues is contained in Myers, supra note 398. 405 Guliuzza, et.a1., supra note 6, at 427. Other nominees in the set include Potter Stewart, Thurgood Marshall, William Rehnquist, Sandra Day O'Connor, Anthony Kennedy and Oarence Thomas. 91

from its original purpose of 1787."406 As Senator Grassley's observations indicate, whiIe the

public battles between the Executive and the Legislature over the last several decades have been

waged over individual nominees, on a deeper level the conflict between senators and Presidents

has been about consti.tutional interpretation and the proper role of the Judiciary in our system of

government. "Make no mistake about it," Crassiey continued, "the critics of this nominee know

the Iaw they prefer is judge-made, and therefore susceptible to change by other judges. Their

loud protests underscore that the Iaw they prefer is not found in the Constitution or the

statutes."407 Crassley was joined in rus protests by several other senators including Cordon

Humphrey and Orrin Hatch. Senator Humphrey maintained that the "most extreme opposition

to Judge Hork comes from those who consider the Supreme Court ... a convenient place to

sidestep the democratic process."408 Senator Hatch argued that "politics are injected into

[confirmation proceedings] because many politicians are hoping to win from unelected judges

what they cannot win in Congress or with the people of the United States of America."409

While part of this must dîscrepancy must be attributed to partisansrup,410 deeper and more

fundamental questions about constitutional interpretatian and the role of the Judiciary seem ta

be at issue in the contemporary confinnation pracess. These concerns were best expressed by

Senator William Roth ofDelaware who commented during the Bork hearings:

1am very troubled that the questioning of the nominee was too specifie and too detailed. In effect, committee members were extracting campaign promises from the nominee who gave them under oath. In doing this the Senate is seeking to control the result of Supreme Court deliberations. In my opinion, this compromises the independence of the judiciary and infringes on the separation of powers. We have no business trying ta get a nominee to decide cases our way. As a coroLIary, we must not deny confirmation because a nominee would decide this case or that case contrary to our preferences. It is not the proper role of the Senate to dietate how specifie cases must be decided as a condition of confirmation. Never before has the

406 Bork Hearings, supra note 4, at S9 (Statement ofSenator Grassley). 407 Id. at 61. 408 Id. at 87 (StatementofSenator Humphrey). 409 Id. at 38 (Statement of Senator Hatch). 410 See, eg., Friedman, supra note 1, at 90 (''It is not surprising that both liberaI and conservative senators have • taken the view, when the nominee has been to their Iikin~ that ideologicaI opposition is generally inappropriate"). 92

Senate done so-until now.411

IfSenator Roth meant to assert that the approach used to attack Judge Bork had never before

been successful, he was only partly correct. While the substantive review of a 5upreme Court

nominee had not, before Bork, resulted in a rejection since John Parker's nomination in 1930,

during the nineteenth century political rejections were common. The turn ofthe nineteenth

century marked a cooling off period for the Senate, as Presidents Roosevelt, Taft and Wilson

expanded the roIe of the presidency. However, over the Iast fifty years the confirmation

process has again been moving in the direction of a more active Senate raIe. Recently, as

Senator Roth's remarks indicate, this trend has once again reached the point where the

confirmation process is threatening ta have a marked effect on how the Court actually perfonns

its function. As historian Richard Friedman warned, "[t]he actual raIe of the Court can be affected strongly by both the memory and the anticipation ofconfirmation battles."412 Given

this truth, perhaps it is time to reeva1uate the Senate's current roIe in the confirmation process.

411 133 Congo Rec. 514,779 (daily ed. Oct 22, 1987)(statement ofSenator Roth), quoted in Rader, supra note 35, at 81l. 412 Friedman, supra note l, at 85. 93 e· SECfION VII: EPILOGUE

The decisive raIe played by the Senate Judiciary Committee during the Bork confirmation

hearings challenged the popular belief that "Supreme Court nOllÙnations are widely accepted as

a presidential prerogative."413 While the Framers of the Constitution were c1ear that the

Executive should play a greater role in determining the composition of the Supreme Court than

the Senate,.U4 the ambiguous nature of the Advice and Consent Oause has allowed senators ta

increase their raIe in judicial selection considerably over the past hvo hundred years. If it is

true, as the historian Charles Black suggested in his famous article on the subject, that IlAdvice"

must by definition mean more than mere "Consent,"415 no consensus on how the Senate should

best administer its constitutionally prescribed duty has emerged. As the last section argued, the

contemporary Senate has fulfilled its IlAdvice and Consent" role by using substantive questions

ta detennine whether a norninee possesses a suitable judicial philosophy. This approach has

tended to focus considerable attention on the nominee~ political views as \vell. This final

section will look at the weaknesses and costs of that approach, and will examine sorne

alternate suggestions for how the Senate can best fulfil its IlAdvice and Consent" function.

A. Predicting A Nominet!s Behavior On The Court

The changes evidenced in the confirmation process over the last fifty years in particular

have been the result of a larger struggle over the proper raIe of the Judiciary in American society.

As the Supreme Court has become increasingly more po\verful, the Senate has increased its

efforts to usurp power over judicial selection. Since, as Professor Stephen Wermiel has

413 Grossrnan and Wasby, quoted in Friedman,supra note 1, at 83. See a/so, Henry Monaghan, supra note 70, 1203 (1988)("during the last century, the Senate's actual role in the appointment process has diminished. [n the twentieth century, presidential ascendancy has so increased that public cantroversy seldom has resulted in unfavorabJe Senate action"). 414 See gellerally Section lof this thesis. 415 "What expectatian seems ta be projected by the wards, 'The President ... shaH nominate, and by and with the Advice and Consent of the Senate shaH appoint ... Justices of the 5uprerne Court ....?' Do these words suggest a rubber-stamp function, confined to screening out proven malefaetors? l submit thatthcy do not. r submit that the word 'advice,' unless its meaning had changed radically since 1787, makes next to impossible that conclusion," Black, A Note on Senatorial Consideration ofSupreme Court Nominees, 79 YALE L.J. ,658 (1970). 94

noted,"the confirmation process has become a means for members of the Senate, especially

those who serve on the Judiciary Committee, to try to influence constitutional interpretation,"416

this development should not be surprising. Nonvithstanding the question of whether this is a

proper exercise ofSenate power, however, there are serious questions about whether this approach has actually worked. The history of the confirmation process suggests that both senators and Presidents have often been remarkably inept at using ïdeology to forecast future

Supreme Court voting patterns.

From the earliest to the most recent appointments, senators and Presidents have found it difficult to predict the future behavior of Supreme Court Justices. SeveraI examples illustrate the existence ofa significant "surprise factor" when itcomes to predicting how a nominee will act as Justice.417 The earliest example of the usurprise factor"came at the beginning of the nineteenth century with James Madison's nomination of former Republican Congressman and

Massachusetts Speaker Joseph Story. Federalists from Massachusetts vigorously opposed

Story, whom they considered a bitter partisan.418 While on the bench, however, Story surprised both ms supporters and his opponents by becoming, in the words of Professor Laurence Tribe,

"an even more committed Federalist than ChiefJustice Marshall...."419 President Jackson aIso leamed the hard way the effect of a Supreme Court seat on an individuaI's perspective.

Jackson's first nominee to the Court, Henry Baldwin, infuriated. the President when he joined the majority opinion in Craig v. Missoun,420 a case that boosted the Second D.S. Bank by invalidating state issued loan certificates.421 Still another example is provided by Lincoln

416 Stephen J. \'\lermiel, Confirming the Constihttiall: Tite Raie of the Senate ludiciary Committee, 56 LAW AND CONTEMPORARY PROBLEMS 122 (1993). 417 According to one study, "one justice in four has turned out to be quite different from what his appointer wanted," R. Scigliano, THE SUPREME COURT AND THE PRFSIDENCY, 96-97 (1971). See aJso, Hatch, supra note 401, at 1356-58. For a view opposing the existence of a "surprise factor," see TRIBE, supra note 8, at 60-92. 418 Friedman, supra note 13, at 95. 419 TRIBE, supra note 8, at 64. 420 29 V.S. (4 Pet.) 410 (1830). 421 Friedman, supra note 1, at 1296. 95

.) appointee Salmon P. Chase, who was appointed, as Senator Orrin Hatch has noted, "in

anticipation ofbis affirmative vote on the constitutionality oflegal tender laws."422 Soon after

his appointment, Chase defied Lincolnby joining the majority in Hepburn v. Gris-tlJold,423 a case

~which invalidated the Legal Tender Acts he had drafted as Secretary of the Treasury.

Modern Presidents have fared litt1e better. Though President Theodore Roosevelt once

said "1 should hold myself as guilty of an irreparable wrong to the nation if l should put [on the

Court] any man ... not absolutely sane and sound,"424 he felt the perfonnance of his appointee

Oliver Wendell Holmes was neither sane norsound. "I could carve out ofa banana a judge

with more backbone than that,"42S Roosevelt later wrote to bis &iend Henry Cabot Lodge after

reading Holmes's decision in the Northern Securifies Case. 426 Other examples of disappointed

Presidents include: Calvin Coolidge, who was baffled by the influence ofJustices Brandeis and

Holmes over his appointee Harlan Stone427; President Truman, whose friend Tom Oark

infuriated him by voting against Truman's takeover ofthe nation's steel mills in 1952428;

President Eisenhower, who responded to a question about whether he had made any mistakes

while in office by saying, 'ryes, two, and they are both sitting on the Supreme Court,"429 and

finally, Richard Nixon, who was upsetby Lewis Powell over the issue of wiretapping.43O

422 Hatch, supra note 401, 1357 (1986). In discussing the proposed nomination of Chase, Lincoln explained his choice: H[W)e wish for a ChiefJustice who will sustain what has been done in regard to emancipation and the legaJ tenders....Therefore we must take a man whose opinions are known," quoted in Friedman, supra note 1, at 1297. 423 75 US. (8 Wall.) 603 (1870). 424 Quoted in Friedman,supra note 1, at 1298. 42S Quoted in id. Set alsoGouLD, THEPRESIDENCYOFTHEOOORE ROOSEVELT,6H4 (1991). Roosevelt apparently never forgave Holmes, WrÏting to his friend Lodge several years later that Holmes was lia bitter disappointment, not because of any one dedsion but because of his generaJ attitude," Letter !rom Theodore Roosevelt to Henry Cabot Lodge,September4, 1906,quoted in Friedman,supra note 13, at 1299. 426 193 US. 197 (1904). 421 Freund, supra note 1, at 1156. 428 MCOJu...oUGH, supra note 330, at 901. 429 TRIBE. supra note 8, at 51. 430 One reason Nixon nominated Powell was Powell's position in favor of wiretapping. During his days in private practice, Powell wrote an article in which he defended the right of the President to engage in wiretapping without Courtapproval. 'The outay against wiretapping is a tempest in a teapot," Powell wrote, U[t]heir are only a )'-~ few hundred wiretaps annually and these are directed at those who seek to subvert our democratic form of •...... _:. govemment.Ir According to Branner, N[t]he article was read and lovingly reprinted in the [Nixon) White House," quoted in BRONNER, supra note 3, at 22-3. Shortly after joining the Court, however, Powell recanted his position. 96

The Senate has also done a poor job of appraising the putative philosophies of nominees.

Appeais CourtJudge John J. Parker, who was rejected by the Senate in 1930 primarily due to concerns that he was anti-Iabor431 and anti-civil rights,432 tumed out to be quite liberal in his views and very sympathetic towards labor and blacks.433 Parker's later record on the Fourth

Grcuit Court of Appeais so thoroughly contradicted the predictions made by opponents ofhis nomination, that during the 1930s severa! senators admitted they had erred in voting against him.434 Moreover, attempts to predict the future behavior of nominees could have deprived the

Court ofsorne of its greatest members. Severa! senators opposed John Marshall Harlan because he was a former slave-holder and opponent of the antislavery Thirteenth Amendment.435 Yet had they succeeded in blocking his nomination, the Court would have lost its sole dissenter in

Plessy v. Ferguson. 436 Similarly, though neither Hugo Black nor Earl Warren encountered much opposition in the Senate, both men could easily have failed to meet the test imposed by today's

Senate. Black was well-known as a former rnember of the Ku Klux Klan at the time of rus confinnation,437 and Earl Warren had been responsible for the internment ofJapanese- quoted il: BRONNER, supra note 3, at 22-3. shortly after joining the Court, however, Powell recanted his position. Writing for the majority in United States v. United States District Court (407 U_S. 297), Powell argued that the Executive had no power to order wiretapping without Court approval. 431 The genesis of this view was Parker's decision enforcing "yellow-dog" contracts in the Fourth Circuit's Red lacket case, Vieira & Gross, supra note 13, at 327. 432 The NAACP managed to sway several senators to oppose Judge Parker based upon comrncnts he made campaigning for the govemorship of North Carolina a decade earlier. "The negro as a class does not desire to enter polltics," Parker had said. "The Republican Party of North Carolina does not desire him to do 50. VVe recognizc the fact that he has not reached that stage in his development when he can share the burdens and responsibilities of govemment," '1lloted l1: Danelski, Ide%gy as a Grolwd for the Rejection of the Bork Nomination, 84 NORTHWESTERN L. REY., 914 (1990). 433 See generally, HARRIS, supra note 61, at 126-132; Danelski, supra note 432,. at 912-914; Friedman, supra note 13, at 1313. 434 Danelski, supra note 432, at 915. According to Danelski, the American Federation of Labor "apologized for its opposition," id. at 915. 435 Friedman, supra note 1, at 25. 436 163 U.S. 537 (1896). This was the case that obIiterated the civil-rights gains made by blacks during Reconstruction,legitimizing segregation and the Jim Crow system through the introduction ofthe "separatebut equal" doctrine. Harlan was the Court's greatest dcfender of the equal rights of blacks before the 19505. In his lone dissent in Plessy, Harlan wrote that the "Constitution is color-blind, and neither knows nor toleratcs dasses among dtizens." 437 See T. Halper, Senate Rejection ofSupreme Court Nominees, 22 DRAKE L. REY., 107 (1972); Fein, supra note 9, at 681. 97

Americans while he was Govemor ofCalifornia during World War Two.438 Despite this,

however, bath men later participated in the landmark civil-rights case of Brown v. Board of

Education.

Though recent confinnation proceedings seem to suggest that the Senate currently views

the confirmation process as a means to influence constitutional interpretation,439 little evidence

exists to prove that this approach has worked. As Senator Orrin Hatch has written, Uhistory

suggests that neither the president oor the Senate is completely able to dictate jurisprudential

directions by selection ofjudges."440 But if the substantive questioning of nominees does not

help senators influence constitutional interpretation, sorne have argued it has irnposed

significant costs. One of these costs is the supposed threat that an active Senate review poses

to judiciaI independence.

B. Judiciallndependence

During ms 1987 confinnation hearings, Judge Anthony Kennedy testified that the primary

reason Supreme Court nominees should refuse to answer substantive questions flis that the

public expects the judge will keep an open mind."441 Indeed, this expectation has been part of

our political culture since the framing of the Constitution. The Founders were counting on the

fact that judges would remain independent of political institutions; that is why judges were

granted life tenure on the bench.442 If the Founders saw independence as essential to the

functioning of the Judiciary, they did not foresee that the confinnation process itself would

evolve to become a threat to judicial independence. Thus the second knock against an active

438 Fein, supra note 9, at 681. 439 WcnnieI, supra note 416, at 122. 440 Hatch, supra note 401, at 1361. 441 Hearings before tlze Committee on the ludiciary of tire United States Senate, One-Hlwdredth Congress, First Session on tire Nom;'lation ofAnthorlY M. Kennedy ta be Associate Justice ofthe Supreme Court oftire United States at 217 (1987). 442 ln Tlle Federalist No. 78, Alexander Hamilton defended the dcdsion to grant life tenure to judges in this way: "The complete indcpendcnce of the courts of justice is peculiarly essential in a limited Constitution.... [The Constitutionl can be preserved in practice no other way than through the medium of courts of justice, whosc duty it must be to declarc ail acts contrary to the manifest tenor of the Constitution void," ALEXANDER HAMILTON, THE FEDERAUsr No. 78, supra note 69, at 466. See a/sa, 2 FARRAND, supra note 14, at 73-84. 98

Senate role in the Supreme Court confinnation process is the damage this approach has done to judicial independence.

Looking back on appointments during the Civil War and Reconstruction, it is apparent that ideological resistance has been strongest when the Court's standing has been low, and when its raIe has been seen as a largely political one. If perceptions of the Court have affected the confinnation process, however, the relatïonship has also clearly cut the other '\-vay. The prolonged public debates that have come to characterize modern confinnation proceedings have served, in the words ofJudge Robert Bork, to "chill the climate in wruch judicial deliberations take place, to erode public confidence in the impartiality of the courts, and to endanger the independence of the judiciary."443 The Senate's role in the confirmation process has evolved from its humble origins to the present state, where questions are asked and answers are expected.444 While this development has been Iauded by sorne,445 others have tmcovered serious flaws in this approach. As Professor Steven Lubet has noted lI[v]irtually every answer by every nominee nlay be interpreted as suggesting a possible future ruling. Indeed, even a commitment to open-mindedness may he seen as prejudicial to parties seeking to maintain the finality of an established precedent."446 During the Bork hearings severaI senators, including

Orrin Hatch aIso found fauit with the scope of the Senate's inquiry. In rus opening statement

Senator Hatch said,

The great danger l see in the impending ideologicai inquisition is injury to the independence and integrity of the 5upreme Court and the whole federai judiciary.

443 THENr.w YORK TIMES, Oct. 10, 1987 at 13. 444 BORK, supra note 10, at 347, ("[tlhe senators are now accustorned to insisting upon answcrs to doctrinal questions"). 44S See, e.g., Nina Totenberg, n,e Confirmation Process and the Public: To Knour Or Not To Know, 101 HARV. L REv., 1213-1229 (1988). Commenting upon then-Judge Scalia's refusaI to answercertain questions during his SuprElT\e Court confirmation hearings,Totenberg observed, lI[the]udidaryI Committee should require sorne cooperation from a nominee in discussing generaI judidai philosophy as a condition for confirmation" (p. 1219). According to Totenberg, "The Uudidaryl Committee's hearings on the nomination ofJudge Robcrt Bork were ... the first timc the process worked propcrly" Cp.I220). 446 Lubct, supra note 384, at 245-6. See also, Stevcn Carter, The Confirmation Mess, 101 HARV. L. REY., 1194 (1988) (lia norninee is not indcpendcnt when she is quizzed, openly or not, on the dcgrec ofher reverence for particular precedents"). 99

When we undertake to judge a judge according to political rather than legaI criteria, we have stripped the judicial office of all that makes it a distinct separated power. If the general public begins to measure judges by a political yardstick and if the judges themselves begin to base their decisions on political criteria, we will have lost the reasoning process of the Iaw which have served us sa weil to check poLiticaI excesses and fervor over the past 200 years. l would ask any American if they would wish to have their life, liberty and property resting on the decision of judges who are more worried about what the newspaper might say about the case than they are about life, liberty or property .... Senate precedent does not support subjecting judicial nominees to ideological inquisitions. rvforeover, the Constitution itself does not support that practice.447

Though Senator Hatch was wrong to suggest that Senate precedent /ldoes not support subjecting judicial nominees to ideological inquisitions," he was right to assert that "'the

Constitution itself does not support tItis practÏce."448 Indeed, the fear that the Senate would politicize the selection of judicial officers was one of the key factors James Madison cited ta convince the delegates at the Canstitutional Convention to drop the idea of senatorial appointments.449

As the Bark hearings demonstrated, the fears of Madison and Senator Hatch have dearLy been borne out by the CUITent confinnation process. Madison, as Judge Randall Rader tells us, warned the Constitutional Convention that /lthe means of selecting judges could affect the institutional character of the third branch."4so Today, this prediction has been realized. The

Ne-'UJ Republic wamed after the Bork rejection, "[t]he oruy nominee who in the future will be able to survive the demagoguery will be someone who can respond in kind."451 But no Supreme

Court nominee can "respond in kind" to the ad hominem attacks of senators; ta do so would be to demonstrate a degree ofintemperance and thoughtlessness not befitting a Suprerne Court

Justice. On the other hand, as the Bork nomination showed, those nominees who attempt ta

447 Bork Hearings, supra note 4, at 36. 448 Id. 449 See supra notes 34-35, and accompanying texte 450 Rader, supra note 35, at 780. 451 Rotunda, supra note 323, at 586. 100

respond ta the questions ofsenators undennine their impartiality and compromise their judicial

independence. c. RoZe Distinction In cornmenting upon the nomination ofJudge Robert Bork, thenJudiciary Committee

Chairman Senator Joe Biden observed that it is appropriate for the Senate to consider a nominee's judicial philosophy if that philosophy played a role in the President's decision ta make the nomination.452 While this conunent suggests that Biden views the role of the President and that of the Senate to be corresponding, this view seems to defy both history and prudence.

As historian Richard Friedman has aptly noted,lIthe roles of the president and the Senate are different, and there is no necessary symmetry in the factors that they should consider."453

To return to the Constitutional Convention, a major reason the Framers vested the power of appointrnent in the Executive was because they feared the parochialism of the Senate.454

Equally important, Madison feU strongly that the President would be considered a IInational officer, acting for and equally sympathizing with every part of the U[nited] States."455

Therefore, the President was given the power ta select, while the Senate, in the spirit of checks and balances, was given the power ta ratify or reject the President's choice. The distinction between these two raIes is crucial. Even if the Senate rejects a nominee it opposes for

452 "Whether a Senator will also take philosophy into account should depend to a large degree upon whether the President has done 50 in making the nomination.... When a President attempts to direct the court's future [sicl course by submitting a nominee known to be committed to a particular philosophy, it should be a completely sufficient basis for a Senator's negative vote that the nominee's philosophy is one that the Senator believes would be bad for the country," 133 Congo Rec. 511264 (5 Aug., 1987), qlloted in Vieira & Gross, supra note 13 at 351 n. 197. Sua/50, Black, supra note 415, at 658. 453 Friedman, supra note 1, at 87. 454 2 FARRAND, supra note 14, at 81. Madison argued: "If the 2d. branch alone should have [the power of appointment], the judges might be appointed bya minority of the people, tho' by a majority, ofthe States, which could not be justified on any prindple as their proceedings were to relate to the people, rather than to the States." See a[so Fein, supra note 9, at 673, who writes, "[senators'I elections from parochiaI state constituencies in campaigns is which votes on judidal nominees are rarely an issue dcprive thcm of any mandate to deny confirmation because ofa nominee's judidal philosophy." 455 2 FARRAND, supra note 14, at 81. See aIso, Fein, supra note 9, at 675), (lia major reason for confiding the appointrnent power in the president rathcr than the legislature was the unique national perspective of the former, an aspect that is especially important in sclecting Justices who will expound the Constitution for a nationwide constituency"). 101 ideological reasons, senators have no guarantee that the next nominee will be any more to their liking.4S6 The President may continue to nominate Justices who comport \vith ms ideological views, and though the Senate can in tum refuse to ratify these choices, struggles of this kind will eventually diminish respect for the Court. Should the President decide to back down, on the other hand, and nominate a candidate of the Senate's choice, the Senate is essentially bypassing the presidential power of appointment.457 This is problematic for two reasons: First, as evidenced by the nomination of Edwin Stanton during the Grant presidency,458 senators, as

Bruce Fein writes, tend to be "intelleetually shallow and result-oriented," and thus their decision-making "will almost invariably degenerate into partisan posturing."459 Second, as the

Brandeis, Parker, and Bork hearings show, the Senate is more likely than the Executive to be subject to interest group pressures,460 but less likely to know much about the nominee's intellectual background and qualifications.461 Based upon this evidence, it becomes clear that the despite the overwhelming temptation to intervene, the proper and prudent course for the

Senate is one ofself-restraint. In the words of historian Richard Friedman,

[sJuch self-restraint demands of the Senate a sense of constitutional courage: ft must recognize that sorne choices in our government are meant to be the province of other branches; it must have faith that improper choices can eventually be corrected by the constitutional processes; and it must believe that assuring desired judicial result is less

456 As Representative Morris Udall noted at the time ofthe O'Connor nomination, "[mly Democratie friends ought to be grateful ... [t's almost inconceivable to me that they could do any better. Ronald Reagan isn't going to appoint liberai Democrats," M. Udall, A Master Stroke, WASH. POST, July 13, 1981 at A 13 col. 2, quoted iu Friedman, supra note 1, at 87 n.558. 457 Friedman, supra note 1, at 88-9, (liA Senate that consistently refuses ta approvc an ideologically hostile nomincc is essentially denying the president his powerof nomination"). 458 See supra notes 231-234, and accompanying tcxt. 459 Fein, supra note 9, at 673. See a/sa, Carter, supra note 447, at 1195, ("Passing entirely on the question of what judicial philosophy is, [emphasis in originall it should be perfectly obvious that at any level much more sophisticated than 'Will this nominee vote my party's line?' the members of the Senate are not competent to evaluate it.... Senators and their staff will not have read deeply or broadly in the literature on judicial philosophy cr adjudication or interpretation; even ifthey have, they will be unlikely to have the scholarly turn of rnind to make sense ofit a1l). 460 The nature and timing of the confinnation process makes it more likely that interest group pressure will be brought ta bear on the Senate rather than on the Executive. Typically the timing ofSupreme Court vacancies are not known in advance. Accordingly, intercst groups rarcly have time or access to influence a President's decision. On the other hand, interestgroups generally have considerably more time and better access through which to lobby members ofthe Senate. 461 Friedman, supra note 1, at 1313. 102

important than preserving the structural integrity of our govemment.~2

The Senate is nat charged with the task ofdetennining whether the President's selection is ideal,

or whether, as Joe Biden asserted during the Bork hearing "[the nominees] particular philosaphy

is an appropriate one at this time in our history."463 Itis charged withdetermining whetherthe

choice is acceptable. Surely it does not take as broad and potentially destructive a force as the

current Senate raIe in the confirmation process to accomplish this task.

D. The Future

The role played by the Senate, specifically the Senate Judiciary Committee, in judicial

selection has expanded beyond what history and the Constitution suggest is appropriate. But

if a proper reading of the Advice and Consent Oause rejects the ideological review of nominees,

to what degree can the Senate scrutinize judicial nominees? Ifone accepts historian Charles

Black's reasonable assertion that "Advice" must by definition mean more than "Consent,"464 it

becomes clear that the Senate is not meant to function merely as a "rubber starnp" on

presidential nominations. What then, is the Senate's proper raIe?

While the Appointments Oause prescrfbes no limits on the Senate's "Advice" function,

sorne observers have suggested that other sections of the Constitution are dispositive. Senator

Orrin Hatch, for example, has written that the Senate should take its eue from Article VI, which

requires senators and judges to take an oath to support the Constitution.465 "Senators," according to Hatch, "should strive to satisfy themselves in confirmation proceedings that a

norninee will uphold the Constitution and laws of the United States."466 According ta this

462 Friedman, supra note 13, at 1320. 463 Quoted in Guliuzza et. aL, supra note 6, at 416. 464 See supra note 415, and accompanying text. 465 U5 CONST., ARTICLE VI states: "The Senators and the Representatives ... and the Membcrs ofthe several State Legislatures, and ail executive and judicial Officers, both of the United States and of the several States, shall be bound byOath or Affirmation, to support this Constitution." 466 Hatch, supra note 401, at 1355. Senator Charles Crassley has argued that this oath "imposes a duty on the president to appoint, and on the Senate to confirm, only those judidal candidates who seem tikely to interpret that Constitution and those laws according to their true meanings," C. Grassley, Ilidicial Nominations and tlte Senate's 'Advice and Consent' Frlnction, THEJUDGES WAR, (p. McGuigan & O. Weyrich cd. )107 (1989). 103

standard, senators can legitimately explore a judge's judicial philosophy, but only to the extent

that such an inquiry sheds light on a nominee's ability to uphold ms oath to the Constitution.

How such a standard might work in practice was described by Senator StromThunnond during

the confirmation hearings ofJudge Robert Bork:

Sorne have said that philosophy should not be considered at aU in the confirmation process.... l believe that a candidate's philosophy may be properly considered, but philosophy should not be the sole criteria for rejecting a nominee with one notable exception. The one exception is when a nominee clearly does not support the basic, long­ standing consensus principles of our Nation. .. [do not believe that philosophy alone should bar a nominee from the Court unless that nominee holds a belief that is 50 contrary to the fundamental, long-standing principles of this country that a nominee's service would he inconsistent with the very essence of this country's shared values.467

Included among the countries shared values, Thunnond explained, are a beliefin free speech

and equal rights.468

Others have argued in favor of a different standard for evaluating the proper role of the

Senate in judicial selection. Historians N orrnan Vieira and Leonard Gross suggest that "[s]ince

the Framers sought to create an independent judiciary by granting life tenure to federaI judges, it

can be argued. that the 'advice and consent' clause should be interpreted in a manner consistent

with the goal of securing an independent judiciary."469 While this certainly seems reasonable,

others have suggested an even more concrete standard. ProfessoI" Paul Freund has suggested

the adoption ofJudiciary Committee rules to "provide senators and nominees with sorne guidelines."470 This may weil be the best solution. It is clear that the imprecise nature of the

Advice and Consent Oause has allewed the Senate to play a greater role in judicial selection

than it was meant te. By adopting clear and precise boundaries, the Senate could go a long way towards limiting the abuses that have corne ta characterize the modem confirmation process.

467 Bork Hearings, supra note 4, at 19. This view is shared by historian Richard Friedman, who '<.Tites: I/[AI Senator should not put ideologicaL considerations totally out ofmind. He should satisfy himself that the nominee does not hold views theSenator regards assa repugnantthat he perceives hann merely in giving the nominee the opportunity to air them from the platformoftheSupreme Court,''' Friedman, supra note 13, at 1318. 468 Id. at 19-20. 469 Vieira & Gross, supra note 13, at 334. 470 Freund, supra note 286, at 1147. 104

E. Conclusion

It is clear from the Bork hearings that the current Senate has come to see itself as an "equal

partner with the President in rnaking [Suprerne Court] appointrnents."4ï1 Though available

historical evidence suggests that the Framers intended for the President to be the "principal

agent" in charge ofselectingJustices,472 the imprecise language of the Advice and Consent

Oause of Constitution has allowed the Senate to expand its role in the confirmation process

significantly since 1789. The controversy over the Senate's proper role in Supreme Court

nOllÙnations is about constitutional interpretation, and, on a deeper leveI, about the proper role of the Court in the American system ofgoven1ffient. As the Court has become a more powerful

force, senators have sought to influence its decisions by controlling its membership. While this approached has occasionally worked, it has frequently failed. Moreover, the Senate's efforts to shape the Court ideologically have tended. to foeus on probable voting patterns, undennining the public's faith in the independence of the Judiciary and in the structural integrity of the government.47J As the least democratic branch of the government, the power of the Supreme

Court is inextricably linked to the willingness of the public to abide by its decisions. As the experience of the early twentieth century demonstrated, public faith in the Court has generally been high \vhen the Senate's role has been limited. On the other hand, as is evidenced by both the Reconstruction pattern and by the modem confirmation process, the greater participation of the Senate in judicial selection has dirninished the stature of the Court.

471 Bork Hearings, supra note 4 at 121 (Statement ofSenator Robert Byrd). 472 See supra note 77, and accompanying texte 473 Friedman, supra note 1, at 95. lOS

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