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Anthony Shane Dolgin April, 1997 The expanding role of the United States Senate in Supreme Court conhnation proceedîngs Anthony Shane Dolgin Department of History McGill University, Montreal April, 1997 A thesis subrnitted to the Faculty of Graduate Studies and Research in partial fulfilment of the requirements of the degree of Master of Arts O Anthony Shane Dolgin, 1997. National Library Bibtiothèque nationale 1S.I of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON KIA ON4 Ottawa ON KIA ON4 Canada CaMda Your file Votre reference Our i51e Notre relerencB The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seU reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electro~cformats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thése. thesis nor substantial extracts fkom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. .. ABSTRACT..................................................................................................................................... arr 1. THEFRAMERS' INTENT: ADVICEAND CONSENTIN CONSTITUTIONALTHEORY .................................................................................................. -1- A . The Constittttional Convention ......................................................................................... -7 B . The Ratif?cBtion Debates ................................................................................................ 15 C. The Federdist Papers ................ ... ............................................................................. 17 1 . THEEARLY HISTORY OF SUPREMECOURT APPOINTMENTS ........................................... 22 A . John Rutletige ................................................................................................................. 22 B . Alexander Wulcoft .......................................................................................................... 2s I31. THETRANSFORMATION IN SENATE RESPONSE TO SUPREMECOURT NOMINATIONS (PART 1) ....................................................................... 31 A . The Appoinfrnent Process Takes on Political Colorntion .................................................. 32 B . The intentions of fhc Framers' are Lost on the Senate ....................... ............................ 34 C. Tyler Fails To Norninatr in Fiue Attempts ...................................................................... 38 D . Justice's Seaf Rernains Vacant for Twenty-Sevcn &Ionth ................................................ 43 E . Appointrnents and the Court in the Years Ltraciing up to the Civil War ..................... .......45 F . The "Dred Scott" Decision ............................................................................................ 48 IV . THETRANSFORMATION IN SENATE RESPONSE TO SUPREMECOURT NOMINATIONS(PART 2); RECONSTRUCTIONAND BEYOND.......................................... 51 A . The Court D~lnngthe Ciml War and Affer ................................................ ................. -51 B . Reconstmction Appointrnents ..................................... ... .....................*.......................... -56 C. The Weakening of the President's Rule ............................... ......... .................................... 57 D . The Declinc Of Purtisanship .......................................................................................... 59 E . Senaturial Coirrtesy Derails Cleveland's Nominees .......................................................... -60 VI . THECONFIRMATION PROCESS IN THE MODERNERA .................................................... 66 A . The Brandeis Case .......................................................................................................... 67 B . The Calling of Nominees Before the Senate Judiciary Cornmittee .................................... 70 C . Questions Posed fo Suprrme Court Nominees ................................................................. 77 D . The Bork Nomination ................... .-........................................................................ 86 WI. EPILOGUE ............................................................................................................................ -93 A . Predicting A Nominee's Behnvior On The Court ............................................................ -93 B . Judicial Independence .................................................................................................... -97 C . Rule Distinction: The Presiden t us . the Senate ............................................................. -100 D . The Future .......................,., ........ ,.., ............................................................................ 102 E . Concltrsion .................................................................................................................. 104 .BIBLIOGRAPHY .................................................................................................................. 105 A . Officialand Semi-Ofiicial Publications ......................................................................... 105 B . Books ........................................................................................................................... 106 C . Articles ........................................................................................................................ 108 This thesis could never have been completed without the help of a number of important people. Robert Hohner, my undergraduate American history professor at the University of Western Ontario, made leaming about history so enjoyable that I thought 1wanted to be a teacher myself. He warned me not to rnake the study of history my career, but to keep it as a hobby; three years later, 1 wish I had Listened to hun. My parents, Midiael and Marilyn, and my stepmother, Caryn, provided seerningly endless encouragement, and convinced me not to abandon ths projed as the months stretched into years. My brothers, Je& Jordan, and Adam, also provided me with much love and support over the course of this project. Professor Leonard Moore of McGill was insbumental in steering me away from my original topic and convincing me to choose the topic that 1 was really passionate about. Without the heip of my advisor, Cil Troy, 1 would certainly never have completed this projed. 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 topic in ways that I had previously not, and 1am gratehl for his guidance. If 1 possess any of the Whies of the historian, it is due, in large measure, to him. Mary McDaid of the History Department gave me invaluable advice and encouragement. With patience and understanding, Mary responded to my countiess e-mails and repetitive questions, always adding a kind word or joke. Leonard Leo, my hiend and mentor, offered many helphil suggestions and cmunentç, and often devoted many hours of lus time to helping me to uuderstand complex legal arguments. I am deeply indebted to hùn. Chris Gabriel and Doug Ubben, my CO-workersat the Federalist Society, also gave generously of their time tu help edit the rnanusmpt. In the three years that 1 have been working towards this degree, I have certainly leamed v more about myself than about legai history. 1 owe special thanks to several people who put up with my intolerable impatience, conhision and soul-searching. 1would like to thank Hope for the love and support she has provided over the last six years. She promised that she would kill me if 1did not complete this thesis: 1believed her, and have worked hard to prevent her hom having to make good on that promise. To my dose hiend Rochelle, thank you for your invaiuable insights into the human condition and into my diaracter. My very good &end Shen also provided mu& needed love and support. As 1 end this chapter of my life and move on to the next, 1 would also like to thank Katie, who has corne to mean so much. 1look fonvard to realizing ail of our potential together. Fuially, I would like to extend speüal thanks to my best hiend, Dan Senor, who first got me thinking about this topic six years ago when he presented me with JudgeBork's The Temph'ng of Am& as a twentieth birthday gift. Reading that book gave me my htexposure to the conhation process, and ultimately led me to write this thesis. It goes without saying that the views expressed in ths thesis are rny own, and do not necessarily reflect the attitudes of any of the people who assisted in its production. This thesis traces the growth the United States Senate's rale in the Supreme Court con£irmation process hmthe passage of the Judiaary Act of 1789 to the nomination of Robea H. Bork in 1987. Beginning with an examination of the intelledual origins of the Advice and Consent Clause of the United States Constitution, the thesis goes on to demonstrate that the Senate's role
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