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
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.. 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 in the con£irmation process has expanded well beyond the boundaries established by the Frarners of the Constitution, and that this has resulted in a usurpation of the presidential power of appointment. The thesis concludes by arguing that the growth of the Senate's role in the confirmation process has harrned the integrity of the judiaal branch by infringing upon the separation of powers, speaficaily demonstrating how the modem confirmation process has threatened to undermine the independence of the Judiaary.
Cette thèse suit la progression du rôle du Sénat americaine dans le procédé de ia confirmation de la Cour Suprême, a 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 Clause du Conseil et du Consentment de la Constitution des Étas-unis. Elle procede à démonstrer que le rôle du Sénat dans le prodd6 de sa confirmation s'est elargi au- délai des frontiers etablies par les créateurs de la Constitution americiane, et que celui-là a resultk dans l'usurpation du pouvoir presidential A nommer les postes essentiels dans le domaine de la justice. La condusion de cette thèse est basée sur l'augmentation que la progression du rôle du Senat dans le procede de la confirmation des postes judiaaires a endommage l'intégrit6 de la judiaaîre americaine en empietant sur la séparation des pouvoirs, particulierexnent en demontrant la façon par laquelle le procedé de la confirmation a menad de saper I'independance de la branche judiciaire.
vii LVTRODUC~ION
Between 1894 and 1986 only four presidential nominations to the Supreme Court failed to
win Senate approval.1 %ythe early 1980s' the Likelihood that the Senate would reject a nominee
to the COU&had become so low that one expert dubbed the confirmation process "routine."2 In
1987, however, observers of Amencan political theater wihiessed a confirmation battle that
was 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 J~idiaary
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 Amencans became aware of the confirmation
process in a way that they had never before been. Yet the greater involvement of the Amencan
public in the confirmation proceedings came at a significant cost, for when the main findly
dosed on the Bork hearings it laid bare a process that was deeply flawed.
Some observers attempted to explain the attacks unleashed against Bork by maintaining
Lhat his nomination feu into that rare category of nominations which threaten the "ideological balance" of the court. Since Bork was nominated to replace the moderate Justice Lewis
Powell-onsidered by many observer; to bbe the "swing vote" between the liberal and
1 Presidcnt Herbert Hoover's second appointee to the Suprcmc Court, John]. Parker, becamc the first nominee in this centucy not to win confirmation after the Senatc rejected him by a 41-39 margin, 72 Cong. Rcc. 84û7 (1930). The next defcated nominee \vas Associate Justice Abe Fortas, whosc nomination to rcplace retiring Chief Justice Earl Warren \vas withdrawn by President Lyndon Johnson, 114 Cong. Rec. 29,577 (1968) after the Senate dcclined to invoke doture (4533 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 rcjected by the Senate. AAcr successfully nominating Warren Burger, Nixon failcd to push both Clement Haynesworth Jr., 115 Cong. Rec. 35,396 (1969) or G. Harold Carswell, 116 Cong. Rec. 10, 769 (1970) through the Scnatc. Not included in this List is Lyndon Johnson's nominee of Homcr Thornberqi. Thornbcrry was not technicalty rejected since his failed nomination was tied to the unsuccessful nomination of Fortas as Chief Justice, see Richard Friedman, 77ze Tra?zsformation in Senate Response to Suprerne Court Nominees, 5 CARDOZOL. RN. 1 (1983). Kcrmit Hall Iists al1 Supreme Court nominations hmGeorge Washington to George Bush in MAJORPROBLEMS IN AMWCANCONST~ONAL HISTORY, xl-xfuiii. For a list of rejected nominees only, William Swindler, The Poiirk of "Adoice rnzd Consent," 56 AMERKAN BAR ASSOCIATIONJOURNAL 536 (1970) providcs an excellent chart which inchdes statistics on the composi lion of the Scnate at the time of rejection. ALBERT B MUSTEIN & ROY MERSKY,THE FIRST O NE HU~REDJUSTICES (1978) also includes a usehl chapter on rejected nominecs. 2 Friedman, supra note 1, at 1. 3 According to one source, the Bork nomination prompted more letters and telephone calls to the Senate than any other issue in history, ETHAN BRONNER,BATTLE FOR JUSTICE, (1989) overleaf. L conservative blocs on the courtd-many cornmentators argued that Judge Bork's views were too radical and would upset the delicate balance of the Courts StiU others looked to the role of the media, daiming that in this new information age the public was destined to become more involved in the confirmation process? Yet while both these observations point to an anomalous quaiity about the Bork nomination, and suggest that it was a produa not of history, but of contemporaty politics and culture, this conclusion belies the historical record. The Bork confirmation battle was no anornaly-it represented the culmination of over two centuries of
Senate aggrandizement of power in the appointrnents process.
The senators who opposed Bork did so because they believed it was appropriate for them to consider and reject his substantive views. In this, they were supported by an impressive array of legal scholars and intellectuals who testified to the histoncal and constitutional precedents for rejecting a nominee based on his judicial philosophy. As conservative comrnentator Grover Rees noted after Bork's defeat, however, the Senate Judiciary Committee
"seemed deterrnined to obliterate any distinction between judicial philosophy and political ideology"7 during the hearings, and consequently their rejection of JudgeBork, though ostensibly based on the nominee's judicial philosophy, was dearly based on politics. The problem which
&ses is that white rnost observers agree that the consideration of a nominee's judicial philoçophy is within the Senate's punriew, there is considerable disagreement over whether it is appropriate for the Senate to consider political ideology. Some 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 FI. Bork to be an Associate ltrstice of the Suprerne Court of the United States: Hearings Before the Senate Cornmittee on the Iirdiciary, 100th Cong. 1st Sess. 49 (Statemcnt of Senator Alan Simpson) f hereinafter Bork Hearings 1. 5 See, e.g., Ronald Dworkin, Dre Bork Nomirration, 9 CARDOZOL. REV. 101 (1988) ("Bork's views do not lie within the scopc of the longstanding debate between liberals and conservatives about the propcr roic of the Supremc Court. Bork is a constitutional radical .. . "). 6 See, e.g., Frank Guliuzza et al., Charaster, Cornpeteiicy ami Cotistituh'onafisrn: Did the Bork Nomination Represent A Frrndarnental Shqt in Confirmation Criteria, 75 MARQU~L. RN. 417 (1992). 7 Grover Rees, rire Nat Bork, NATIONALREVIEW, December 9,1988 at 32. J views was a proper and even essential part of the confirmation process."8 Others have argued that it is beyond the proper scope of the Senate's role for senators to question norninees about their substantive views, concluding, as Bmce Fein does, that "[tlhe Senate's failure to conh
Judge Robert Bork as a Supreme Court Justice resulted kom 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 confirrning
Supreme Court Justices exceeds the power granted by the Advice and Consent Clause and has begun to undennine the independence of the Court. In the aftermath of his nomination battle,
Robert Bork daimed that "[tlhe process for confimùng Justices for our nation's court has been transbrmed in a way that should not, indeed must not, be permitted to ever occur again."io
Since then, however, we have already witnessed another highly politicized confirmation stniggle with the Clarence Thomas hearings. Indeed, liberal aitics of Thomas, upset by their failure to keep him off the Court, have sustained their assault on the Justice, and have attempted to undermine the legitimacy of his decisionsJ1 This high degree of politickation poses no srnall danger to the Judiciary. As JudgeBork has pointed out, "[wlhen the Court is perceived as a political rather than a legal institution, nominees wiu be heated like political candidates."i2 In such an environment, candidates will not only be asked-as they presenlly are-but expected to identify their substantive positions on pending legal issues. Today, we are very nearly at this point. If we progress dong the current path, eventually the notion of judicial independence will be undermined. When this OCCLUS, respect for the Court will dirninish, and our system of laws, dong with any sense of moral obligation to obey hem, will surely become a casualty of the confïrmation process.
8 LAURENCETRIBE, GOD SAVETHIS HONORABLECOURT, 96 (1985). 9 See Bruce Fein, A Circumscribed Seirate Confirmafion Role, 102 HARv. t. RN.687 (1989). 10 ROBERTBORK, THE TETVI~~ING OF AMERICA, 313 (1991). 11 See, eg., MarkTushnet, Clarmzce Tfiornas: The Constitrttional Problems, 63 GEO.WASH. L. REV. 466 (1995). 12 BORK, supra nate 10 at 349. The condusions of this thesis may be summarized briefly: The role of the Senate in
Supreme Court confimations has expanded far beyond anything the Frarners envisioned. This
expansion has occurred gradually through changes in politicai custorn, constitutional law,
Senate tradition, popular perception, and appointment criteria. The overd effect of this
transformation 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
"ideological review" as an appropriate and histoncally justifiable confirmation criterion. This,
more than any other development, has Led to a politickation of the Court, which in turn has
eroded the perception of judiciai independence.13 Whiie the Framers did not dearly spell out in
the Constitution how judiaal appointments would work, a review of the history of the
Constitutional Convention reveals that a primary goal of the Framers was to produce an
independent Judiciary. This is evidenced by the debates surrounding the granhg of life tenure
to federai judges.14 As historians Norman Vieira and Leonard Gross have thus argued, "[slince
the kamers sought to create an independent judiciary by granting life tenure to federal judges, it
can be argued that the 'advice and consent' dause should be interpreted in a manner consistent
with the goal of securing an independent judiaq."15 Uearly the highly politicized
13 In rcccnt yearç, many legal analysts have noted an inverse relationship behveen the politicization of the Court and public rcspect for it. See, e.g., Abner Mikva, Iiidge Picking, IO Dm. LAWYER 40 (1985): Whcn the Court is perceived as an apolitical, wise, and impartial tribunal, the American people have evinccd a willingness to abide by its dccisions. But if the Court is viewed simply as a Congress in black robes, the Court's abiIity to perfom its constitutional hnction is threatened. A sirnil ar view is offered by Richard Friedman, who argues: Extended debates, both within the Senate and beyond, concerning recent [Supreme Court1 decisions and the political philosophy of a norninee cannot help but diminish the Court's reputation as an independent institution and impress upon the pubtic-and indeed on the Court itself-a poIitical perception ofits role .. ..The Court is usehl in our system of govenuneni, abte to piay a role distinct €rom those of the political branches, precisely because it is, and is perceived to be, different from those branches. Richard Friedman, Tribal Myths: Ideology and the Con@rnation 01Strpreme Court Nominations, YALE L. J. 1317 (1986). See also, Norman Vieira & Leonard Gross, The Appoi~itmentsClaztse: Judge Rork and the Role of ldeology in ludicial Confirmations, 11 j. LmHiSToRY 332 (1989). 14 2 MAX FARRAND,THE RECORDS OF THE FEDERALCONVEN~ON OF 1787, (1966) (revised four volume edition originally published in 1937) 73-83. 15 Vieira & Gross, supra note 13, at 334. e confirmation proceedings of the present day do not meet this test.
Suice this examination is meant to prove that the Senate's interpretation of the Advice
and Consent Clause has not faithfully represented the original intentions of the 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 Clause
has been reached, this thesis will examine other relevant primary evidence kom the period,
induding both the Federalist Papers and Anti-Federalist Papers, to determine how the Advice
and Consent Clause was perceived at the time the Constitution was ratified.
Section II will be devoted to an analysis of the way early Congresses interpreted the
Advice and Consent Clause. Mer hding that early Congresses interpreted the Advice and
Consent Ciause in a manner consistent with the letter of the Constitution, Setion III will
examine the Senate's departure from that document. Professor Richard D. Friedman explains
that "[tlhe changes in the confirmation process cannot be fully explained without first
understanding in some depth the role played by the Supreme Court in the natioiial aisis of Civil War and Reconshction."l6 Thus, Section IV wiil detail the changing role of the Court during
this period. Ln addition to this, Section N will examine the history of judiaal appointments
durhg Reconstnibion to show how the Republicans in the Senate imposed 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 turn of the century and how
this altered the corthmation process. Section VI examines the appointments process hom the
him of the century to the Bork hearings. Much scholarship kom this period depicts the
confirmation process as routine and points to an al1 powerfui Executive, at least as far as
Supreme Court appoinhnenîs are concerned. Beneath the surface, however, various changes
were taking place that enhanced the power of the Senate and aeated the potential for a
16 Friedman, supra note 1, at 5. 17 rd. 6 con&mation battle like Bork's. Finally, the Epilogue draws on the lessons of the past to suggest a future standard for the confirmation process.
Some may choose to dispute the merits of this thesis from the outset based upon the correct assumption that the Senate has not often exercised great power over Supreme Court appointments in this century. However as the Bork nomination proved, the Senate has beconie an extraorduiarily 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 Amencan Republic is replete with examples of the Senate aggrandizing power in the judiaal appointments process. This is the story of that expansion of power and its costs. 1. THEFRAMERS' INTENT: ADVICEAND CONSENTIN CONSTI~ONALTHEORY
ln di very numerous assemblies, of whatever characters composed, passion never fiils tu surest the scepter from reason. Had every Athenian citizen been a Sonates, evey Athsnian assembly would still have been n mob.
James Madison explaining why the Legislative brmch was il1 suited to appoint Suprcme Court justices-Fcdcralist 355.
A. The Constitutional Convention
When the delegates to the Constitutional Convention Mved in Philadelphia in the spnng
of 1787, they faced a most daunting challenge. As evenk during herica's first decade proved,
the Articles of Confederation failed to meet the challenges faced by the fledgling nation. A new
compact between the States was necessary to revive the country, which had already
accumulated a 39 million dollar debt by 1787.
For a gathe~gwith such grandiose aims, the Constitutional Convention began
inauspiciously. Slated to convene on May 14, poor attendance forced the assembled delegates
to adjourn "from day to day" in anticipation of new KiivalsJs These delayç were not well
received, particularly by General George Washington, who wrote to his friend Arthur Lee that
waiting for the absent delegates had served to "sour the temper of the punctual members, who do not like to ide away their time."i9 As fnistration mounted with each new day, delegates
continued to tridde in, and by May 25 seven states were Myrepresented.20 With more than half of the states now represented, the delegates were satisfied to begin the proceeduigs.
The £irst order of business was to elect a President. Legitimate contenden for the post numbered only ho,George Washington and Benjamin Franklin. Suice the Pemsylvania
18 1 FARRAND,supra note 14, at 1, On the first day of the Convention, only two states, Virginia and Pcnnsylvania, wcre represented at the State House, see Washington's diary entry for May 14 reprinten in 3 FARRAND,at 20 (Appendix A, Selection Wï). 19 Letter of George Washington to Arthur Lee, May 20, 1787. Reprinfed in 3 FARRAND,supra note 14, at 22 (Appendix A, Selcction )o. 20 The seven states were New York, Delaware, Pennsylvania, Virginia, North Caroiina, South Carotina and New Jersey. 8 delegation had ciecided to confer the honor upon Generd Washington, the matter was quickiy cded to a vote.21 The nomination was unanimously received, and General Washington was duly conducted to the chair by John Rutiedge and Robert Moms. With this issue out of the way, the delegates adjourned for the weekend.
When the Convention reconvened on Monday, May 29, the delegates were ready to consider the weightier questions before them. The hst man to address them was Governor
Edmund Randolph of Virginia, who stated that since the Convention had been conceived by
Virginia's representatives, he Mt obliged to offer some recommendations. Though the Congress had authorized the delegates to review and amend the Articles of Confederation,u it was soon apparent that Governor Randolph and the Virginia delegates had more extensive plans. As
Professor Lino Grag?ia has desaibed, Randolph hvedwith "a hlly Eormulated plan for an essentidy unitary system of govemment."a The delegates quiddy realized that the Virginia
Plan was a revolutionary proposal to reshape, redesign, and reinvigorate the Çederal government.
On the subjea of the Judiaary, Randolph's Ninth Resolution proposed the creation of
"one or more supreme tribunals . . . to be diosen by the National Legislature."24 It was an important resolution, if only because it set the tone for al1 Future debate about appointments, but it was by no means unanimously received. Shortly thereafter, Charles Pinduiey of South
Carolina introduced a rival proposal that, though not as detailed as the Virginia Plan, contained severai popular resolutions. One su& resolution was number seven, which proposed granting the Senate the "sole and exclusive power . . . to appoint. . . Judges of the Supreme
21 Frankiin hiinself had pianned to make the nomination, but indement weather and his health had prcvented him from attending on May 25,1 FARRAND,supra note 14, at 4. 22 According to the resolution adopted by the Congress, the Convention was called merely to remedy the dcfects "evinced . .. in the present Confederation," Resolution of Congress, 21 February 1787, reprinted in 3 FAR RAND,^^^^^^ note 14, at 13-14 (Appcndix A, Selection 1). See also, Lino A. Graglia, ï7re Growth of National llrdicial Pmuer, 14 NOVA L. REV. a t 53 (1989). 23 16. at 53. Though Governor Randolph had becn selected to introduce the Virginia Plan,Jarnes Madison was the principal architect of the resolutions which bore Randolph's name. 24 1 FARRAND,supra note 14, at 21. The tension between these two proposais 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
Pemsylvania, an ardent opponent of Legislative appointrnents. Arguing that "experience
showed the impropnety of such appoinhnenh by numerous bodies," Wilson suggested that the
power of appointment should be reserved for the Executive.26 This idea quickiy came under
attack kom Çouth Caroha delegate and future Supreme Court Justice John Rutledge, who
warned that the people of the United States would surely be more fearhl of appointments
made by the Executive-which he dubbed a step "towards MonarchyW-than of those made by
the Legislative branch.27 It seemed as though an impasse was fast approadung.
Sensing that the debate was nearing itç boiling point, Benjamin Franklin weighed in at this
time to encourage tiis countrymen to embrace the spirit of compromise. Noting that ody two
modes of dioosing had thus far been ciiscussed, Franklùi invited the delegates to consider other
modes of selecting judges "as might occur to other gentlemen."zg With tongue firmly in cheek,
Franklin related the Scotch method of nomination, whereby the selection of judges was
entrusted to lawyers, "who aiways seleded the ablest of the profession in order to get rid of him, and share his practice (among themselves)."29 WMe these remarks softened the tone of
the debate and inhised it with some much needed levity, Franklin's corrunents also foretold the
need for a compromise on this issue.
With Franklin back in his chair, James Madison now offered some thoughts on judiaal
selection. Though Madison was allied with those delegates who advocated the creation of a
25 3 FARRAND,strpra note 14, at 599. 26 1 FARRAND,supra note 14, at 119. 27 rd. It is somcwhat ironic that Rutiedge opposed placing the power of appointment within the Executive branch. Lesthan 10 years later he became the Eirst Supreme Court nominee ever rejeded by the Senate. 28 id. at 119-20. 29 Id. at 120. 10 a powerfd Dlecutivcmen like James Wilson and Gouvernuer Moms of Pennsylvania, Aiexander Hamilton of New York, and Nathanid Gorham of Massachusetts-he was enough of a
moderate to appeai to most of those assembled. Like Wilson before him, Madison opposed
vesting the power of appointment in the Legislature or "any numerous body30 But like
Rutledge, he too was wary of the dangers involved in giving too much power to the Executive.
As he hinted to the delegates, he was "rather indined to give [the power of appointment] to the
Senatonal branch." 31
Though Madison had succeeded in establishùig himself as 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 his hand by suggesüng wholesale changes to Randolph's Ninth
Resolution, Madison quietly rnoved that the words "appoinfment by the Legislahtre might be
strudc out, and a blank left to be hereafter filled upon rnaturer reflection."32 Wilson-correctly
assurniRg that this sounded the death kneli for Legislative appoinûnents-eagerly seconded the
motion, which passed over the negative votes of Connecticut and South Carolina.33
Madison's argument against vesting the power of appointment in the Legislature shaped
the emerging debate over judicial appointments. As Madison informed lus colleagues,
"Legislative talents, which [are] very different hmthose of a Judge, commonly recornmended
men to the favor of Legislative assemblies."~In other words, lawmakers-most of whom
lacked the "requisite qualifications" of a judge-would be prone to conhise the distinction
30 rd. 31 Id. 32 id. 33 ld. It is interesting to note that aAer Madison's resolution passed, Alexander Hamilton suggested the idsa of the "Executive appointing or norninating the judges to the Senate which should have the right of rejecting or approving." This description, offered by deiegate William Pierce of Georgia, is the only existing record of Hamilton's proposal. Several other participants took comprehensive notes during the Convention-induding Secretary William Jackson, Rufus King of Massachusetts, Robert Yates of New York, Madison of Vitginia, but only Pierce made mention of Hamilton's resolution, which was substantively very similar to the appointrnents clause as ratified, see id. at 215- between judging and lawmaking if given power over judicial appointments. As Judge Randal1
Rader has noted, Madison believed that this difference was cruad:
[Madison] seemed resolved that the selection of nonpolitical off cers of the judicial branch should not fa11 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 struggie for some time to find the best institutional means to select judges possessing legal, rather than lamaking, qualifications. [But] in any event, it is hard to escape the condusion that Madison wished to divorce the politics of lawrnaking from the process of selecting legal officials.~
Though Madison remaineci unsure about the proper brmulation of the appointmentç clause, by
Lhis time he had evidentty come to rejed the idea of Legislative appoinfments as ernbodied in the Virginia Plan.
Mer this debate, the issue of judiaal appointments was not discussed untii June 13, when the Comrnittee of the Whole met to revisit the question3 Since Madison had yet to subrnit a new proposai for confirming judges, Charles Pinckney and Roger Sherman of
Connecticut now attempted to restore the already defeated Legislative appointments clause, but Madison patiently reiterated his objections and convinced the men to withdraw their motion.37 Recognizing that his failure to propose a substitute had breathed Life into a dead issue, Madison now moved in favor of appointment by the Senate. As Madison exptained to the delegates, the Senate "as a less numerous and more select body, would be more competent judges."38 The delegates accepted this proposai without a recorded vote, thus endkg the hopes of proponents of Legistative appointments.39 If the Convention had rejected the possibility of appointments by the Legislature, the idea
35 Randall Rader, The Independence of tire lrt diciary: A Critical Aspect of the Confirmation Process, 77 KEMUCKV L,J. 780 (1988-89). Though the Advice and Consent Clause as ratified lumped political and judicial appointments in together, it is clear from the Convention that the Framers expected the Senate to appty a non-political standard to judiaal appointrncnts. 36 The Comrnittee of the Whole was established May 30 to consider the state of the American Union. Al1 the members of the Convention sat on this cornmittee, which was chaired by Nathaniel Gorham of Massachusetts, 1 FARRAND,supra note 14, at 2,16. 37 ld. ai 232. 38 1d at 233. 39 Id. a 12 of senatorial appointrnent was not universally accepted. Madison had managed to sel1 the
Senate to his colleagues as a more deliberative body less prone to "intrigue and partiality," but
he stiU had to assuage the fears of those concemed with separahg the politics of lawmaking £rom the operation of judicial selection. hduded in this group were delegates brom the smaller
states, many of whom fek that regionalism and parochialism would dominate the process of
judiaal selection as administered by either branch of the Legis1ature.m On June 14, New Jersey
delegate William Paterson addressed the Convention as the self-styled representative of these
srnaller states and asked for additional time to contemplate the Virginia Plan3 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 dong with delegates hom Connecticut, Delaware, Maryland, and his
home state, Paterson had devised an alternate plan based on "purely federal" ideals. Dubbed
the New Jersey Plan, this proposai was introduced by Paterson on June 15. Included arnong itç proposais was a resolution to vest power over Supreme Court appointrnents with the
Execu tive.43
With two separate resolutions for appoinûnents now before the Convention, Alexander
Hamilton took to the floor on June 18 to address the nature and hinction of Executive power.
Hamilton extolled the Wtues of a strong Executive, and suggested that prudence dictated the
wisdom of vesting power over judiaal appointments with the President "subject to the
approbation or rejection of the Senate."% This was not the first time he had suggested Lhis
40 Rader, supra note 35, at 781. 41 The resolution on judicial appointments that passed the Cornmittee onJune 23 was but one of 19 resolutions, al1 stemrning from the Virginia Plan, to be passed that day. Paterson, was not objecting solely to the resoIution on judicial appointments, but to the whole Virginia Plan, 1 FARKAND,supra note 14, at 223. 42 For information about attendance at the Convention, consult 3 FARRAND,supra note 24, at Appendix B. 43 Resolution # 5 provided: Resolvcd that a federal Judiciary be eshblished to consist of a supreme Tribunal the Judges of which to be appoint& by the Exccutive, and to hold their offices during good behavior .. . . Reprinted in THEAm-FEDERALIÇT PAPES AND THE CON~ONALCONVENTION DEBATES 64(Ralph Kctchum, cd.) (1986). 44 1 FARRAND,supra note 14, at 292. 13
O formula for appointment, but this time Hamilton's suggestion was part of a fully-formulated theoq of Executive power that more greatly irnpressed the delegates. Though power over
judicial appointment remained with the Senate for the time being, both Hamilton's address and
the New Jersey Plan served to underscore the relative strength of Executive appointments.
The importance of Hamilton's thinking on the subject of judicial appointrnents becarne
dearer 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 "advice and consent" of the Senate9 Though he agreed with James
Madison that the Senate would be better disposed to select judges than the Legislature, Gorham
also believed that the Senate wouid be "too numerous, and too Little personally responsible, to
ensure a good choice."a As he told the delegates, the mode he was suggesting worked quite
weU in his home-state of Massachusetts, where it had been in use for over 140 years.47
Before Gorham's resolution could be called to a vote, supporters of Executive
appointments led by James Wilson and Gouverneur Morris called a vote on that question..ls
With the Gorham resolution looming, however, this resolution attracted the support of ortiy two
states.49 Next on the dodcet, Gorham's motion won the assent of half of the delegations, but
since eight states were present the vote ended in a tie.50 Despite the fact that the motion was
not adopted at this tirne, the close vote proved that the delegates were warming to a
compromise that would address Gorham's concems about vesting the power of appointment in
46 id. 47 Chapter 11, section 1, article IX of the Massachusetts Constitution at the time read: "A11 Judicîal officem. . - shall be nominated and appointed by the Governor, by and with advice and consent of the [second branch of the tegisiature]," 5 %URCES AND DOCUMENTSOF THE UNTIFD STATESCON~ONS 100 (William Swindler, ed.)(1975). Sec also, Vieira and Gross, supra note 13, at 315. 48 2 FAR RAND,^^^^^^ 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. a 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.
Induded in this ernerging consensus was the powerhil James Madison, who had been impressed by the successhil showing of Gorham'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 President be granted power over judicial appointments subjed 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 day with two major victones: The influentid
Madison was now in his camp, and the Convention had agreed to revisit the issue on his terms.53
From this point forward, the debate remained stable. Though t!e language of Madison's original motion (in favor of senatorial appointment) remained in the draft document, forces coalesced around the reformulation he and Gorharn had offered. In response to the criticisms of
Edmund Randolph and Elbridge Gerry of Massachusetts, Madison dropped the two-thirds requirement on July 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 vimially evev speaker had "made objections to the dause as it stood,"suggested the delegates refer the matter to the Çpecial Cornmittee on Postponed Matters, or the Cornmittee of
Eleven (one delegate from each state).M With ths the debate had corne to a close.
When the Committee of Eleven reported back to the Convention on September 4, they presented an appointments clause that renected the obvious idluence of Hamilton, Gorharn and Madison:
The President by and with the advice and Consent of the Senate, shdl 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 FAR RAND,^^^^^^ note 14, at 44. 53 ld. 54 Id. at 393. For the various objections, see generally id. at 380-395. Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court and all other Offices of the U-S-, whose appointrnents are not othenvise herein provided for.55
Gouvernuer Morris-earlier a staunch advocate of Executive appoïntments-summarized the
opinion of the majority in his description of the new clause: "As the President was to
nominate, there would be responsibility, and as the Senate was to concur, there wouid be
security (emphasis added)."s When the eieven delegations voted on the proposed draft of the
judicial appointrnents clause three days later, thiç language was accepted unanimously, and the
Advice and Consent Clause was born.57
B. The Ratification Debates
While the participants at the Constitutionai Convention seemed to be dear on what they
were getting with the Advice and Consent Clause, the delegates to the state ratifying
conventions were apparently not so sure. Several critics complained that the mode of judiciai
selection placed too much power with the Executive. On the other hand, athers maintained that
the Senate had too much power over the President. The resolution of these conflicts shed
significant Light on the tenor of the Advice and Consent Ciause.
The most vocal critic of the Advice and Consent Clause was Maryland's Luther Martin,
an erstwhile delegate to the Constitutional Convention who le& Philadelphia without signing the
finished productsg As one of only a handfd of delegates who refused to sign the Constitution,
Martin's opposition was particdarly damaging.59 In an address before the Maryland
Legislatue on November 29,1787, Martin spelled out his opposition to the presidentiai power
of appointment:
58 For Martin's attendance record, consutt 3 F.~UWD,supra note 14, at 589. While Martin did not stay unti1 September 17 to voice his opposition to the Constitution, he had made his opinions known on several occasions, see, e-g., the transcripts from September 1, id. at 476. 59 The others were Edmund Randolph and George Maçon of Virginia, Robert Yates and John Lansing of New ' York, and Elbridge Gerry of Massachusetts. [t was said, that the person who nornitrates 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 al1 restra.int 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 varïety of officers, in every part of the of the addepartment for the union, who will be very numerous, in them and their connexions, relations, friends, and dependents, he will have a ionnidable host, devoted to his interest, and ready to support his ambitious views . . . These circurnstances, combined together, will enable him, when he pleases, to become a king in taurne, as well as in substance, and establish himself in office not only for his own life, but even, if he chooses, to have that authotity 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 concem that the
Senate had too mu& power and could easily make the President its tool.61 This appraisal was also o£fered at the Virginia convention by George Mason and Richard Henry Lee. Mason-who had spent more than three months at the Constitutional Convention-found the "irnproper 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 thai its chef defect was that "the President is connected with or tied to the Senate; he rnay always act with the
Senate, but he can never effectualiy counteract its views."63 A similar objection was raised by
Samuel Spencer at the North CaroIina convention: "The President may nominate, but they [the
Senate] have a negative on hs nomination, tilt he has exhausted the number of those he wishes to be appointed. He will be obliged, findly, to acquiesce in the appointment of those whom the
Senate shall nominate, or else no appointment will take place."64
60 Reprinten iri 3 FARRAND,sripra note 14, at 172-232 (espccially 218). 61 jOSEPH HARRIS,THE ADVICE AND CONSENTOF THE SENATE,26 (2953). 62 Mason feIt that the Advice and Consent Clause, among others, "dangerously blendfed]the executive and Iegislative powers," 2 THECQMP~E~EAm-FEDERALIST (Herbert J. Storing, ed.,) at 11-13. See also 3 Farrand, supra note 14 at 639; Harris, sripra note 61, at 25.
63 Harris, supra note 62, at 26. Lee had been elected to serve as a member of the Virgïnia- delegation,- but declined, 3 FARRANO,s~i~ranote 14, at 558. 64 Qrroted in Harris, supra note 61, at 26, Though fears about the Senate's proposed role in the appointment process were dearly in evidence during the ratification process, these fears did not dominate. Ln the various states, defenders of the Advice and Consent Clause helped to reshape the debate and assuage the fears of those alarmed by the Senate's proposed role. Responding to opponents in
Pemsylvania, James Wilson reassured delegates that "in the exercise of every one of [its powers] 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 norninate before [the
Senate] can vote," Wilson argued: "[H]e holds the helm, and the vesse1 cm proceed in neither one way nor another without his concurrence."66 James Iredeil, a delegate at the North Carolina convention, captured the tnie spirit of the Advice and Consent Clause when he told delegates there "the Senate has no other idluence but a rest..a.inton improper appointments."67
Maryland's James McHenry also interpreted the Çenate's role narrowly, arguing that the Advice and Consent Clause sewed to check the power of the Executive "without endange~gLiberty by the junction of the Executive and Legislative."68
While it is dear that several questions about appointments were raised during the ratification debates, these questions rarely focussed attention on the Executive. Most of those who expressed concern over judiàal selection focussed their attadcs on the power of the Senate to thwart the will of the President. Wherever these concems were raised, however, they were rejected by defenders of the proposed Constitution.
C. The Federalist Papers
The most usefui insights into the proposed Constitution came in the form of The Federnlist
Papers, a collection of essays written by John Jay, James Madison and Alexander Hamilton.
65 James Wilson in the Pennsylvania Convention, Decernber 4, 1787. Reprinted in 3 FARRAND,supra note 24, al 162. 66 Quoted in Harris, srlpra note 61, at 26. 67 Ici. 68 JamesMcHenry before the Maryland House of Dclcgates, November 29,1787. Reprinten 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 authontative text ever written on the Constitution. For the purposes of this discussion The Fedrrdist Papers are important for two reasons: First, since
Hamilton conceived of the idea that both the Senate and the President wouid play a role in the appointment of judges, his opinions on how this 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
In Hamilton's opinion, the role of the President was significantiy more important in the appointment process than that of the Senate. As he explained in The Fedrralist No. 66:
Tt will be the office of the President to tzornirzate, and with the advice and consent of the Senate to apyoitr t. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose-they wn only ratify or reject the choice he rnay have made. They might even entertain a preference to some 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 fa11 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 hel 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 Çenate .could not reject a qualified candidate simply because it favored the candidacy of another. As Hamilton pouited out, there is no affumative constitutional compulsion to force the Senate to confirm any of the President's choices. Ultimately, however, the Çenate must accept a candidate of the Presidenfs choosing if the Judiciary is to hindion.7o
69 ALEXANDER HAMILTON,THE FEDERAUST NO. 66, (Clinton Rossiter, cd.,) (1961) 405. It should be noted that in both THEFEDERAUST NO. 66 and No. 76, the two places whcre Hamilton is most concemed with thc Apointmcnts Clause, he is not speaking soieIy of judicial zppointmcnts, but of al1 Prcsidcntial appoinhncnts requiring Scnatorial approval. As Vicira and Gross note, "Hamilton apparcntly envisioncd no differences in the manncr of appointing judges €romthat of appointing othcr officers." As evidence of this thcy point to THEFEDERAUST NO. 78 at 464 ("As to the mode ofappointing judgcs: this is the samc with that of appointing the officers of the Union in gcncral . . .") sce Vieira & Cross, supra note 13, at 342 n. 65. 70 See e.g ., Hcnry Monaghan, The Confirmation Process: Law or Politics, 101 HARV.L REV. 1206 n. 20 ("the Sena te rnay not act so as to materially impair the functioning of the Court "). 19
Perhaps the best justification for why Hamilton placed greater hith in the choice of the
President was offered by James Madison, who noted in The Federalist No. 55 that "[il n aJJ very
numerous assemblies, of whatever characters conposed, passion never fails to wrest the scepter
Erom reason."n If Hamilton was wary about the Senate exerasing undue influence over the
appointrnents process, he was aiso concerned with the prospect of leaving too rnuch power in
the hands of the Executive-72 In nie Federalist Xo. 76, he painstakingly set out the guidelines
whereupon the Senate might nghtfdy reject a n0minee.n "To what purpose, then, require the
cooperation of the Senate?" Hamilton asked rhetoricauy:
1 answer that the necessity of their concurrence would have a powerful, though in general, a silent operation. It would be an excellent check upon a spirit of favoritisrn in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, kom family connedion, 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 included the
power to reject a nominee. But he steadfastiy held to the notion that in cases "where there were
not speQal and strong reasons for the refusal" the Senate would defer to the President's
constitutionally enumerated power in this area.n
In sum, by the tirne 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 "prinapal
71 JAMES MADISON,THE FEDERALET NO. 55, supra note 69, at 342. 72 it is important to remcmbcr that Ihe Constitutional Convention was origindly faced with a choicc behveen the Virginia Plan, which gave the power of judicial appointments solely to the Lcgislature, and the New Jersey Plan, which vested control over appointments in thc hands of the Exccutivc alone. It was Hamilton who first suggestcd that a cornpromisc was possible, choosing this option ovcr thc New Jcrscy Plan. 73 Intercstingly, the Constitution itself is silent on this point. Nowhcre in the Constitution arc thc powers and strictutes of the Advicc and Consent Clause enumerated. The onIy thing that the clause makes irnpliutly clear is that its goal is to sccure meritorious nominees, Monaghan, supra note 70, at 1205. 74 ALEUNDER HAMILTON,THE FEDERAUST NO. 76,sllpra note 69, a t 457. I 75 Id. at 457. agent" in charge of selecting Justices76 If the President was the main abor, however, what roie
was the Senate intended to play? Hamilton argued that the Senate's job was to "prevent the
appointment of unfït diaracters from State prejudice, £rom Wlycomection, from personal
attachent, or hom a view to popularity,"n but the Appointments Clause 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 PresidenYs choice. But it
is dear kom Hamilton's writings that the Framers intended there to be strict limits on the
Senate's power to rejed a Supreme Court nonunee. What then, can the Senate's power be
properly said to indude? What conduct is excluded by the Constitution?
In many ways, these are the key questions which historians of die cohation process
have sought to answer. Though the Appointments Clause 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 Frdmdist Papers, merit is certainly a factor whch the Senate can
consider: Historians of the con~ationprocess are generally in agreement that the Senate cm
examine factors rvkch contribute to an evaluation of ment, induding: legal training, mord
character, and expenence.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. A senator is bound to ensure that any judge he confimis will ernploy a judiciai philosophy of fidelity to the Constitution.m 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 ALMANDER HAMILTON,THE FEDUWUST NO.65, supra note 69, at 396- 77 ALEXANDER HAMILTON,THE FEDERAUS~ NO. 76, id. at 457. 78 See, e-g., Wm. B. Reynolds, Adjrtdication As Politics By Otlrer Means: Tite Corrriptiori of the Senate's Advice and Consent Frirzctiotz III ludicial Co?tfTrrnations,in JvrirCiAL SELECIION:M EFüT, IDEOLOGY,AND POLITICS, 22 (National Lcgal Ccnter for the Public Interest) (1990). 79 US. CONST.,ARTICLE VI. For the purposes of this paper, judicial philosophy is defincd as a judgc's understanding of the proper rolc ofa judgc. 80 This viov is reinforccd by Alexander Hamilton, who wrotc: "A constitution is in fact, and must be regardcd by the judges as, fundamental law," THEFWERAUST NO. 78, supra note 69, at 467. 21 made. First, the Framers considered independence to be the comerstone 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 Norman Vieira and Leonard Gros have argued, "[slince the framers sought to create an independent judiciq by granting life tenure to federal judges . . . the 'advice and consent' dause should be interpreted in a manner consistent with [this] goal."83 Second, since the Framers went to significant lengths to uisulate the Judiaary kom the other Iwo branches, it can be argued that the Senate may not attempt to control the political orientation of the Court.
In The Federalisf No. 78 Alexander Hamilton rnaintained that "liberty would have nothing to fear hom the judiâary alone, but would have everything to fez from its union with either of the other departments."a When senators consider politics in their evaluation of judicïal candidates, they attempt to innuence constitutional interpretation. This not only compromises judicial independence, but unites the Judiüary and the Legislature in a way the Framers dearly did not intend.
81 See, e-g., ALMANDERHAMILTON,THE FEDERAUST NO. 78, supra note 69, at 466 ("The cornpicte indepcndcnce of the Courts is peculiarly cssential in a limited Constitution"). 82 2 FARRAND,srrpra note 14, at 73-83. See also, ALEXANDERHAMILTON, THE FEDERAUST NO. 78, silpra note 69, at 465 ('The standard of good bchaviour for thc continuance in office of thc judicial magistracy is ccrtainly one of the most valuabic ofthc modern improvcments in the practicc of govcmment, In a monarchy it is an excel!ent barrïcr to thc despotism of the prince; in a rcpublic it is no less an excellent bamer to thc encroachmcnts and oppressions of the reprcscntativc body.. . .[Nlothingcan contribute so much to [the Judiciaqfs] firmness and indcpendcncc as pcmanency in office"). 83 Vieira and Cross, srrpra note 13, at 334. 84 ALEXANDER HAMILTON,THE F~ERAUST NO. 78, supra note 69, at 466. SECTIONII: THE EARLY HISTORY OF SUPREME COURT APPOINTMENTS
The system that the Framers constructed worked as it was intended to during the
Republic's infancy. The originai six appointees to the Court were well qualified, and since there were no dearly formed politicai parties, the Senate had Little reason to delay the confirmation of
President Clrashmgton's onginal choices.s Even as the ho-party system developed, creating a political system that was more binary in nature, the Senate rarely took issue with the President over judiaal selection. When the Senate did intervene, it did so with good reason. As the fïrst
Iwo rejections of Suprerne Court norninees demonstrate, the Advice and Consent Clause functioned properly for aimost a generation.
A. John Rutledge
John Rutledge had already distinguished hîmself by the time President Washington appointed hi.to be an Associate Justice in 1789. One of the most accomplished lawyers of his time, Rutledge had served as Govemor of South Carolina, helped write 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 Chief Justice of the United
States.m When President Washington chose John Jay to be Chef Justice instead, Rutledge only grudgingly accepted a seat as the most senior Associate Justice-rn He would not remain on the
Court for long. Bitter at having been passed over in hvor of Jay, disappointed by the lack of intellectual challenges offered by Court Me, and weary of the hardships imposed by the duty of riding circuit, Rutledge resigned in Mardi 1791 .a9
Neither the passage of time nor a change of scenery could cool the buming of Rutiedge's
85 See HAU, supra notc 1, at xl. 86 KERMIT L. HALL, OXFORDCOMPAN~ON TO THE SUPREMECOURT OF THE UNITED STA~,750-1 (1992). 87 Rutledgc's confidcncc may have been bolstcred by a bclicf that he had an acc in thc holc: During thc Rcvolutionary pcriod, hc had playcd a key rolc in Washington's sclcction as Commander-in-Chicf of thc Contincntaf Army, Vieira & Cross, sqra notc 13, at 322. 88 Id. 89 Rutledgc rcsigncd to bccomc ChicfJusticeof the South Carolina Suprcmc Court, id- U
@ ambition, howcver Though he toileci dutifdly in Charleston, Rutledge kept one eye on the
Supreme Court. In June, 1795, when word leaked that Chef justice jay would resign his seat to
run for Govemor of New York, Rutledge wasted no time in jodceying for position among
potential replacements: "Finding that Mr. Jay is eieded Governor of New York," Rutledge
wrote the President, "1 take the Liberty of intimating to you privately, that . . . 1 have no
Objection to take the place which he holds."[underhed in onginai]go Without subtlety, or an
appmpriate degree of hurnility, Rutledge rerninded the President of how he had teen 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 f thought, very justly,) that my Pretensions to the Office of Chief-Justice were, at least, equal to Mr. Jay's, in point of Law-Knowledge, with the Additional Weight, of much longer Experience, & much grea ter Practice.91
By great coincidence, Washingtori received both Jay's Letter of resignation and Rutledge's resume
on the same day.92 Though he had obviously known of Jay's decision to resign in advance,
Washington had yet to settle his rnind on a suitable replacement.93 Rutledge's letter was
therefore timely, not only because it caught the President off guard, but also because it offered
a solution to a difficult question. Washington was obviously moved by Rutledge's letter,'4 for
the next day he instructed his Secretary of State, Edmund Randolph, to nominate Rutledge as
Jay's replacement.% In the meantime, Randolph was told tu install Rutledge as the acting-Chief
90 1 THEDOCUMENTARY HISTORY OF THE SUPREMECOURT OF THE U NITED STATE, I789-lSOO,94 (Maeva Marcus and James R. Perry eds.) (1985) [hereinafter DKUMENTARYHISTORY]. 91 ln. 92 Both lctters arrived on lune 30,1795. For Washington's responsc to Rutlcdge, see id. at 96-7. 93 Washington had becn actively considering two candidats when he received the Rutledge letter. Treasury Seactary Aiexander Hamilton seemed to be favored by the Pretident, but Samuet Chase was a formidable candidate as well, see CHARLESWARREN, 1 THESUPREME COURTIN Um S TATE HISTORY,125-7 (1922). Rutledge was apparcntly not under consideration for the job. 94 Professor William Swindler has suggcstcd that Washington may have nominated Ruticdgc to "makc amcnds" for bypassing him in 1789, Swindler supra note 1, at 534. 95 See George Washington to Edmund Randolph, 1 July 1795. Reprinted in 1 DXUMENTARYHISTOKY, supra notc 90, at 94-5. Justice pending Çenate approva1.M
By taking the ktand the third steps in the appointment process, Washington was navigating uncharted waters. But if he was tedinicdy 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 sinülar Senate in 17899' If the composition of the Senate had dianged iittie in the intervening six years, however, the norninee was decidedy different. Though once a nominal Federalist, by mid-July
/ 1795 Rutledge had left the Federalist corner and stepped into the ~g to oppose the Jay Treaty, the key to President Washington's Congressional program.98 It was a c-ruaal error, for the candidate alienated those who might have othenzise supported him.99 In the popular press,
Rutiedge was so badly abused that he was scarcely recognizable to those who knew hirn well.
Finally, after the nomination had dragged on for five months, Rutledge was rejeded by a 14-10 vote.ioo
As the first rejection of a Supreme Court nominee, the Rutledge case has justifiably drawn great interest. Since 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,lol severd modem observers have argued that the Rutledge case provides the most accurate reflection of
96 Rutledge was swom in as acting-Chicffustice on 12 August 1795. His commission was only temporary bccause the Senate had not yct rendered its consent. This would have to wait until the body reconvened in the fall. 97 Based on the composition of the Senatc, Rutledge had ostensibly little to fear. Both the Senate that confirmed him in 1789, and the one hc hced in 1795, were composed of Fcdcralist majoritics (17-9 and 19-13, rcspectivcly), and thc Prcsident was well-lovcd by thesc rcprescntatives, Swindler, supra notc 1, at 536. 98 The Jay Treaty was a conciliatory agreement between the U.S. and Great Britain that was meant to hcal the wounds inflicted by the War of Independence. It $vas supported by Federalists, who rallied behind the President, but oppostd by Republicans ,who vicwcd it as an insult to Amcricars allies during the War, the French. Somc controvcrsy exists over tvhethcr Rutledgc kncw of his provisional appointment as Chicf Justice when hc detivercd his initial sally against the Jay Treaty in Charleston on JuIy 12, 1795, see Vieira & Gross, srrpra notc 13, rit 323 and accompanying notes. Thc nomination did not bccome public until July 20, and there is at Icast a good char.re that Rutledgc was unriware of Washington's dccision to nominate him when hc attackcd thcTrcaty. 99 Whilc many Fcdcralist. wcrc "not gcncrally cnthusiastic about the trcaty, [thcyl tcndcd to close ranks and regard any criticism as a bctrayal of loyalty to the administration," Swindler, supra note 1, at 535. 100 ln. at 536. 101 Tticse wcrc John Langdon, Rufus King, Caleb Strong, Oliver Ellsworth, Alexander Martin and Pierce Butler, Vieira & Gross, supra note 13, at 322 n. 73. Al1 of the men votcd on Rutledge's nomination. 35
the intentions of the Framers.102 The Senate campaign against Rutledge wâs led by Oliver
Ellsworth, a Framer and the principal architect of the Judiciary Act of 1789.im According to legal sdiolar Laurence Tribe, "Ellsworth's opposition to Rutiedge fidyestablished that, nght
kom the start, those who wrote the Constitution and founded our nation had no doubt that inquùy into a candidate's substantive views was a proper and even essentiai part of the conlïrmation process."l~ Yet while there is some evidence to suggest that Rutledge was rejected because of his political views, the weight of the documentary evidence contradicts Professor
Trïbe's analysis. The historical record indicates that Rutledge was rejected not because of his opinions about the Jay Treaty, but instead because of legitimate doubts about his mental fitness.
Concems about Rutiedgersmental £itness stemmed £rom the nature of his attacks on the
Jay Treaty. Rutledge's outbursts against the Treaty exceeded the conventional boundaries of political discourse, and were charaderized by some as "crazy" and "shocking."l~ Less than a week after the nomination became public, Secretary Randolph wrote nervously to Washington,
"it is very senously whispered, that within these past two months [Rutledge] is believed in
Charleston to be deranged in his mind."l" Four days later, Randolph wrote to Washington again, tehghim "[tJheconduct of the intended Chief Justice is so extraordinary that [some] conceive it to be a proof of the imputation of insanity."lm One report of Rutledge's speech against the Treaty even maintained that he had hurled "gross invectives against Washington
The Litany of charges against Rutledge did not end there. Other accounts of Rutledge's
- .- 102 Id. at 322. 103 Ellsworth servcd as a reprcscntative for Connecticut. On Ellsworth as the "Father of the Federal judiciary," see TRIBE,srrpra notc 8, at 96, 104 Id. at 96. 105 Qnoted in Vieira & Gross, supra note 13, at 323. 106 Secrctary of State Randolph to Presidcnt Washington (25 July 2787). Reprinted in 1 DOCUMENTARYH~STORY, srrpra notc 90, at 772. 107 Secretary of State Randolph to President Washington (29 July 1787). Reprinted in id. at 773. 108 Quotecl in Vieira & Gross, supra notc 13, at 323. 26
behavior included descriptions of alcoholismf~09financial misconduct,~~oand neglect of duty.111
Sorne of the reports that ttdated about Rutledge were no doubt fabrications concocted by
supporters of the Jay Treaty,llz but much of the gossip that was circulating came from rehable
sources. Many of Rutledge's dose friends, who, Like Ralph Izard, "most sincerely hope[d] that
the Senate [would] agree to the nomination," were alarmed at Rutledge's preapitous decline.
hard wrote to Jacob Read îhat
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 his senses; & 1 am persuaded he was in that situation when the Treaty was under consideration-113
Read wrote back that the members of the Senate viewed Rutledge as a Ioose cannon whose
conduct threatened to "totally destroy all gouvemment [sic] & defeat our representative System
intirely [sic]."ll4 Whle not dl senators felt this way, most were greatly concemed by the
reports of insanity, dnuikemess and finanaal misdealhg that plagued the nominee.115
Perhaps the best evidence that opposition to Rutledge centered on ment 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, however, Hamilton believed that Rutledge should not be rejected solely
- - 109 Edmund Randolph to George Washington, 5 August 1787 "reports of [Ruttedge'sl attachment to his bottle, his puerility, and extravagances, together with a variety of indecorum and imprudencies multiply daily." Reprinten iu 1 DOCUMENTARYHISTORY, slipru note 90, at 776. 110 ApparentIy Rutledge's son had to borrow from a Iocal bank to repay his fathef s debts, see, e-S., " 'ARcal Rcpublican' to John Rutlcdgc," Colurnbia~iCentinel, 26 August 1787, ici. at 784. 11 1 According to Scnator George Walton, Rutledge's administration of his duties as Chief justice of the South Carolina Supreme Court had been so poor "lhat sevcral Grand Juries have presented him for what they thcught Misconduct of at least Negligence of Duty," see John Adams to Abigail Adams, 21 Deccmbcr 1795, id. at 816-7. 112 Alexander Hamilton, a principal çupportcr of the Jay Trcaty, was active in the effort to defcnd the Jay Trcaty and to discrcdit Rutledge. Under the pscudonym Camillus, hc wrotc scvcral bricfs of this nature, see, e-g., 'Thc Dcfcncc No. V by 'Camillus,"' id. a t 776-7; Vieira & Cross, supra note 13, at 323. 113 Ralph Izard to Jacob Read, 17 November 1795. Reprinted iri 1 DKUMMTARYHISTORY, supra note 90, ~t 807- 8. 114 Jacob Read to Ralph Izard, 19 Deccmbcr 1795. Reprinted in id. at 814-5. 115 Scnator Gcorgc Walton of Ccorgia confided to John Adams that hc had been prcparcd to vote against Rutlcdgc, but did not arrivc in time to do so, see John Adams to Abigail Adams, 21 DeCernber 1795, id. 816-7. Evidence of this kind contradicts the scholarship of Charles Warren, arnong othcrs, who has maintaincd that the campaign against Rutledge was a conspiracy of northern Fedcralists to punish Rutledge for his opposition to the Jay Treaty, see 1 WARREN,supra note 93, at 135. because of his position on the Jay Treaty:
If there was nothing in the case but [Rutiedge'sl imprudent sally upon a certain occasion [Le., his attack on the Jay Treaty,] 1 should think the reasons for letting him pass would outweigh those for opposing his passage- But if it really be hue, that he is sottish or that his mind is othenvise deranged, or that he exposed hirnseil by improper conduct in pecuniary transactions, the bypass of my judgement would be negative.116
Further evidence that Rutledge was not rejected for partisan political reasons can be deduced
by examinu-ig 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 his views on the Jay Treaty,li7 it w-ould be reasonable to assume that Federalist
Senators felt 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 1ukewarm.ils Only 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, espeaally since the President himself did not think enough of Rutledge's opposition
to withdraw the nomination.
Rather than confimung, 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 codirrnation process,"l!9 the Rutledge rejectîon 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 hs choice on the bench, whiie the Senate resewed the nght to reject those nominees that Lacked the professiona. qualifications or mental abitify to serve in the nation's highest judicial office. If there was any doubt that JohnRutledge lacked the mental hitness to serve as Chef Justice, this was erased
116 Alexander Hamilton to Ruhs King, 14 December 1795'1 DOCUMEMARYHISTORY, srtpra note 90, at 811-2- 117 This is at the very least impiicit in Professor Tribe's analysis. As he argues, "[elven the insistcnce of [George Washington1 himself was insufficient to overcome the Senatc's decision to exercisc independently its power of confirmation," TRIBE,srrpra note 8, at 96. 118 See srtpra note 99 and accompanying tcxt- 119 See srrpra note 104 and accompanying textt 28
shortly fier his debt rhen 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
confirmation process, hirther reinforces the notion that the Senate administered its "advice and
consent" hction as it was intended to for several decades. By the time Justice William Cushing
died in 1810, his twenty-one years of service on the Court had established a Supreme Court
recordJ20 To replace him, President James Madison courted Levi Lincoln, a Massachusetts
lawyer who had been Thomas Jefferson's Attorney Generd lrom 1801 to 1804. Jefferson had
encouraged Madison to norninate Lincoln, a dedicated Republican, to the Court, but Lincoln (whose health and eyesight were in decline) expressed little interest in serving.121 Convinced he
codd change the candidate's mind, Madison subnutted Lincoln's name to the Senate, where it
was approved, but Lincoln declined as promised.
When word of Lincoln's refusal reached Madison, the President nominated Alexander
Wolcott, a prominent Republican customs collecter in Connecticut who was Little known on the national stage.122 If Madison thought that Wolcott would glide throügh the confirmation
process as Lincoln had, he was sadly mistaken, for the nomination was immediately con~oversial.Throughout the country Federalist newspapers Iined up to oppose his
nomination. As the Columbian Centinel recorded,"even those most acquainted with modern degeneracy were astounded at this abominable nomination. The Senate were appalled."lz Ln
the New England Palladium the norninee was similady abused:
We camot conceive from what influence such a nomination could anse; that a man, barely qualified to discharge the duties of a justice of the peace in a country town,
220 Cushing had been the third man appointed to the court by Washington. At the time of his death, he was the only original member of the Court still sitting, HALL, supra note 1, at xl-xli. 121 W, supra note 86, at 507. 122 M. at 935. 123 Colurnbian Cmtitrel (February 1811), quoted in WARREN,supra note 93, at 411. 29
should be appointed [to the Supreme CourtJ.12J
The basis of these venomous attadcs, according to historian Charles Warren, was that Wolcott
was despised by the Federalists because of his "vigorous enforcement" of the embargo and non-
intercourse laws: "[Alny active supporter of those measures," said Warren, "would have met
with sunilar denunaation hmthe Federaiist opposition."iz Recent accounts of this rejection
tend to reinforce Warren's conclusion, suggesting that the Wolcott nomination was felled
because of the norninee's political or ideological views.126
Yet while Wolcott's political activities did not endear him to the Federalists in the Senate,
his politcal views were not responsible for his defeat. The Senate at the time of Wolcott's
nomination was composed of 28 Republicans versus only 6 Federalists.127 Considering that
Lincoln had already won confirmation, 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 unquaiified for the job.128 Republican members of
the Senate obviously knew this, because only 9 of them voted in favor of conEimiing their
President's choice.
As the Rutledge and Wolcott nominations demonstrate, the early pattern of Senate
response to Supreme Court nominees was consistent with the Framers' views on judiaal
selection. The Senate's rejection of Rutledge and Wolcott does not support the conclusion that
224 The New England Palladium (February 191l), quofed itz id.
126 Sep, e-S., HENRYABRAHAM, J USIICET AND PEIDENTS: A POUTICALH ISTORY O F A PPOINT'MENTS TO THE S UPREME COURT,41 (1985); DAVIDO'B RIEN, STORMC ENTER: THES UPREME COURTLN A MERICAN POUTICS,70( 1990). Abraham, while acknowledging the questions about the nominec's qualifications, concludes that "Madison's nomination of Wolcott fcll9:24 becausc Fcdcralist senators, eagerly backed by thc press, opposed Wolcott's vigorous cnforccmcnt of the embargo and non-intercourse acts whcn he was U.S. collecter of custorns in Connecticut." O'Brien, white nevcr mcntioning Wolcott specifically, impliatly endorscs Abraham's vierv when he rvriteç "[olnly hvo nominccs-Gcorgc Williams in 1873 and G. Harold Carswell in i97û-suffered dcfeat because of mcdiocrc judicial records and lack of personal qualification." 127 TRIBE,supra note 8, at 98; Swindler, sripril note 1, at 536. 128 Evcn Laurence Tribe, thc most active modern proponent of a broad Çenate revicw, admits that the Scnate I ecjectcd Wolcott ubecausc he was not up to snuff," Tm,supra note 8, at 98. 30 the Framers sanctioned the politicization of the confirmation process or the substantive reviea of nominees right £rom 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 Rutiedge or Wolcott provided the nominee was rnentaüy and intellectually fit for senrice.
Instead, what these early struggles point to is a Senate that disposed of its duty in a manner consistent with the spirit and the letter of the Constitution. The Framers intended for the Senate to play a specific role-to sanction those nominees who were fit to serve, and to weed out those who were dt.In JohnRutledge, 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 dt. It is interesting to note that in the Republic's infancy, a nominee was bvice as likely to
deciine to 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 yem, when the Chef Justice 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 ths 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
government important.131 The second was the Supreme Court decision in Marbirry o. Madison,l32
which substantially increased the importance of the Court by giving it the power, in Chef Justice
John Marshail's words, to "say what the law is."1= As the power of the Court increased, and
------129 [n the first 22 years of the CourYs cxistcncc, oniy two norninces (Rutledge and Wolcott) wcre rejcctcd by the Senate, one nominee was forced to his withdraw his name, and five mcn dcclined to serve on the court. The first to decline was Robert H. Harrison, a Maryland lawycr and judge nominated by Washington (24 Septcmber 1789) to be one of the original six Justices of the Court. Two days aftcr the Senate receivcd the nomination Harrison was duly confirmed, but hc \vas forced to dcclinc bccause of bad hcalth. The next nomincc to dcclinc a commission was Associatc Justice William Cushing nominatcd to replace Chicf Justice Jay after the Rutledge rejcction. Though he was casily confirmcd, Cushing chose to rcrnain an Associatc also citing bad hcalth as his rcason. JohnJay bccamc thc third man to dedine a nomination after the Senatc confirmed him to rcplacc Chicf Justice Olivcr Ellsrvorth in 1800. jay cited thc Court's lack of "cncrgy, wcight, and dignity" as his rcasons for dcclining. Madisonian appointce Lcvi Lincoln \vas thc fourth man to dcclinc scrvice afier winning Senatc confirmation. His poor hcalth and hiling eycsight wcrc the rcasons. Finally, John Quincy Adams, also a Madison appointcc, dcclincd an appointmcnt to thc Court in 1811 choosing instcad to rcmain at his job as Ministcr to Russia. The nominec rvho was forccd to rvithdraw his namc hom considcration rvas William Patcrson. At the timc of his nomination Patcrson was still a mcmber of the U.S. Scnate. He Cc11 into the second group of scnators in the first Congrcss whosc tcrm expircd after four ycars. Whcn his nomination was rcceivcd by thc Scnatc his tcrm had yct to cxpirc, and thus his appointment violated Article 1, Section 6, of thc Constitution ("No Senritor.. .shall, dunng thc timc for which hc was clcctcd, be appointcd to any civil officc undcr thc authority of thc Unitcd Statcs . , ,"), Whcn Patcrson's Scnate tcrm cxpired a few days latcr, Presidcnt Washington resubmittcd the nomination and Paterson was duly confirmcd. 130 The carly Court had dilficulty attracting nominec's for scvcral rcasons: First, the Judiciacy Act of 1789 mandatcd that the Justices of the Supremc Court scrvc also as judges on thc various Circuit Courts. On al1 circuits this cntailcd extensive travcl and causcd most Justices great physical hardship. Second, sincc Congrcss ncglcctcd to supply the Court with a chambcr, thc Justiccs oftcn mct undcr lcss han ideal conditions, see entrics for Circuit Ridilzg dnd Chambers in HALL,supra notc 56. 131 The failurc of thc Founding Fathcrs to anticipate the risc of political parties is discusscd bricfly in Henry Abraham, "A bench happily filled:" Some Historical Reflecfions on the Sttpreme Cottrt appointnient process, 66 Jmc~~u~~285(1983). 132 1 Cranch (5 US)137 (1803). 133 Id 32 as the politicai divisions in the counhy widened, control over the Court becme increasingly important. Accordingiy, political considerations began to affect the Senate's performance of its
"Advice and Consent" hnction. Subsequently, rejections increased dramatically. While many of these rejections were based on partisan politics, and had more to do with the power struggle being waged between the Executive and the Legislative branches than with the Court itself, the change in the Çenate'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 becarne a more political body.
A. Appointment Process Takes on Political Coloration
The next President to have the Senate reject a nomination to the Supreme Court was John
Quincy Adams. Elected in 1824, President Adams successhilly nominated Robert Trimble to the
Court in 1826. With Trimble's sudden death in 1828, however, Adams had a second oppomuiity to appoint a Justice. Adams chose John J. Crittenden, a former District Attorney kom Kentucky. It was a good choice-Gittenden 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 norninate Gittenden untii December.13 This was a cruaal mistake, for Adams lost the intervening presidential election to Andrew Ja&on.ls Given that the Senate was composed of a majority of Jackson supporters, it was unlikely that Crittenden was going to receive a hir hearing.136 The veteran Senator Henry Clay understood this welI, and warned his fiend Crittenden to "[plrepare for the worst event."l37
134 Even if Adams had nominated Crittenden before the election, the Senate, bea~nga majority of Jackson 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 Democratic majorÏty in the Senate would wait until the election to act on any nominations. 136 The Scnate composition at the timc was 28 Dcmocratic-Republicans vcrsus 20 National Rcpublicans, sec Swindler, supra note 2, at 536. 237 Henry Clay to John J. Crittenden, 27 January 1829. Reprinted in Goff, Rejection of Srrpreme Court Appointments, 5 JOURNAL OF LWHISTORY 359 (1%1). Clay went on to cxplain, "1 understand that the Senate is considering a general proposai that they witl act upon no nominations during the present administration, except in some few cases of great cmcrgcncy." Ironically, Clay was indirectly rcçponsible for Crittcndcn's rejection. As a candidate in the election O€1828, Clay attraded significant support away €rom President Adams and cnsured his narrow defeat. Had Adams won, Crittenden Within two weeks the Senate had postponed attenden's nomination indefinitely.138
Though this tactic had never previously been used to defeat a nominee, it sewed the Senate's
purpose weii. Crittenden was obviously qualified to sit on the Court, thus Democratic-
Republican senators did not want to vote to reject him. But Jackson's supporters were aiso not
indined to ratify the nomination of a defeated Pre~ident.13~By postponu-ig the nomination, the
Senate avoicied rejecting a qualified nominee and preserved a Supreme Court vaancy for the
incorning President Jackson. The implications of the Senate majority's behavior did not escape
comment, however. Mmost immediately, the Senate's action was criticïzed in the Whig press.
"If there are no better reasons for negleaing to ratify or reject this nomination thnn party
feelings or party politics," wrote 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 pemicious in practice. When the highest judicial tribunal in the Nation is made the tool of a party-when a Court, which has been estabiished 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 severaI 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, selfish and ambitious poiiticians, the corner-stone of the govemment will be undermined, and the fabric left exposed to speedy destruction.i4"
Whig politicians also took issue with the postponernent. John Chambers, a Congressman hom
Kentucky, wrote to Crittenden, "[wlhat a set of corrupt scoundrels, and what an infernal
precedent they are about to establish."l~i As Congressman Chambers predicted, the Gittenden
nomination did indeed establish a precedent. Before Gittenden, none of the 28 nominations
submitted to the Senate were postponed, and ody 2 were rejected. Between 1829 and 1864,
however, the Senate either postponed, or kded to act upon 8 of 32 nominations (one-quarter
woutd havc most likcly becn confirmeci. 138 The vote was 23 to 17. 139 Thc nomination was pcrccivcd in most circlcs to bc the joint work of Adams and Clay. As one supporter of Jackson wrotc, the nomination was nothing morc than an attcmpt by Clay to placc "one of his men on the Suprcmc Bcnch for Ii fc." Givcn that this rvas the popular pcrccption among Dcmocratic-Rcpublicans, the postponcmcnt of Crittcndcn's nomination was sccn as an apportunity to exact rcvcngc upon an arrogant administration, 2 WARREN, supra note 93, at 703. 140 NEWYORK DAILY ADVERTISER, 24 January 2829, qrloted in id. 141 John Chambers to John J. Crittcndcn, 28 Dcccmbcr 1829, qrtoted in id. at 702. the total). If rejections are entend into the dculaticns the statistics are even more
stagge~g-va a 35 year period more than one-third of ail nominees failed to win Senate
B. The Intentions Of The Framers Are Lost On The Smte
While the strong leadership of Andrew Jackson contributed to the bVtti of the modern Demoaatic party, President Andrew Jackson's economic program and his hostility towards the
Second U.S. Bank alienated the northern business dass and spawned the Whig party as weLl.
As the political lines demarcating the second party system came into dearer focus, the politicïzation of Supreme Court appointments reached new heights. President Jackson had Iittle
reason to worry about the composition of the Court-not only had his btthree nominees won
confirmation easily, but he had proved in Worcester o. Georgini4J that the Codsdecisions
ladced efficacy without the power of his office to back them up.l* Whigs, on the other hand,
had a real interest in controhg the membership of the Court. In their eyes, President Jackson
had repeatedly violated the Constitution by urdawfuily centraking power in his office.
Keeping Jackson's men off the Court was one way they hoped to check his power.
When the President nominated Roger Taney to the Court in 1835, Whigs thus set the
142 From the election of 1828 until the assassination of President Abraham Lincoln, 32 nominations were sent to the Senate for approvd. Of these, 5 were postponed (John Crittenden, Roger Taney, Reuben Walw-rth. Edward King, George Badger), no action was taken on 3 (John Read, Edward Bradford, William Micou), and 3 were rejected (John Spencer, George Woodward, Jerimiah Black), Swindier, supra note 1 at 536; HAL supra note 1 at xi-xhiii. While it would be possible to argue that the increased frequency of rejection dunng this time period was a rcsult of the mediocrity of the nominees, this is not necessarily tnie as historian Laurence Tribe tells us: "PresidentsTyler and Fillmore compiled their deplorablé records of Senate rejections less because the catiber of the nominees was questionable than because the Senate took advantage of the political weakness of Tyler and Fillmore," TUBE,supra note 8, at Ill. The same can certaidy be said of John Adams and Andrew Jackson, both of whose rejected nominees were wellqualified. 143 6 Pet. (31 US.) 515 (1832). 144 Worc~stno. Georgia evoived out of attempts by the state of Ceorgia to assert sovereignty over Chemkee lands that were protected by an earlier treaty. Chief Justice JohnMarshall wrote for the majority that Indian nations were "distinct political communities, having temtorial boundaries, within which their authority is exdusive . . . which is not only acknowledged, but guaranteed by the United States." PFesident Jackson allegedly responded: "John Marshall has made his decision; now let him enforce it." Since Jackson's policy tvas widdy popular, and the Court ob"ous1y lacked the power to enfore its mling, the Chemkeer waforcibly rernoved to the Indian Territoties, Hw >.. -= supra note 86, at 138. 35
opposition machinery into motion. Taney was well ho- to rnemben of the Senate by the tirne
of his nomination. As President Jackson's Attorney General kom 1831-33, he had been
popular. But 1833, the year of Jackson's war with the Second US.Bank, marked a turning
point in Taney's politicai career. When two Secretaries of the Treasury resigned rather than accede to Jackson's demand that they kansfer Çederal deposits to state banks, Jackson
switched Taney from justice to Treasury.16 Taney transfemed 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 conh
Taney as Secretary of the Treasury.1" His political aspirations disappointed, Taney returned
to private practice in Batthore. Shortly thereafter he received a letter hom President Jackson,
who wrote, "1 feel 1 owe you a debt of gratitude and regard that 1 have not the power to
discharge."ia7 In January 1835, the resignation of Justice 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 former Attorney General who possessed good qualifications for the
position, and, Like Justice Duvall, he was from Maryland, which would keep the President f?om
upsetting the regional balance on the Court.14 Immediately, however, Whigs in the Çenate moved to block Taney's appointment.149 Their chances were at least even, since the Senate was split dong party lines. Despite Jackson's best efforts, the Whigs managed to postpone Taney's nomination on the last day of session.i50 To be sure Taney never reached the Court, over- zeaious senators passed a measure abolishing the vacant Court seat, though the proposal later
145 See Li- at 858-9; Goff, supra note 137, at 360. 246 HALL,sicpra note 86, at 858. 147 Quoted in ABRAHAM,supra note 126, at 100. 148 Bcforc the abolition of arcuit riding in 1891, rcgionalism played a crucial rolc in shaping Suprcmc Court appointmcnts. Whilc a detailcd evaluation of this phenornenon is beyond the scopc of this thcsis, an cxcellcnt analysis of this factor is containeci in Friedman, supra note 2, at 1. 149 Goff, supra note 137, at 360. 150 ABRAHAM,supra note 126, at 100. died in the House.ls1
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 his word, Jackson resubmiîted Taneyrs name on 28
December 183hnlythis time provided an ironic twist to the nomination. On July 6, after
thirty-four years, five months, and eleven days as Chief Justice, John Marshall died in
Philadelphia.lS3 Jackson intended for Taney to be his replacement. Again the debate over the
nomination was aaimonious. Remernbering how Jackson's Lieutenants had thwarted John J. Cnttenden's promotion to the Court, Whig leaders Henry Clay and Daniel Webster fought
Taney passionately. When former Vice President John Calhoun, now a bitter Jackson opponent,
joined Lheir ranks, Taney's nomination seerned to be in houble.15~Despite their best efforts,
however, the Whigcalhoun axis fell short. When the votes were tallied, Taney had won co~ationeasily.
The tenor of opposition to both Taney nominations suggests that the Senate's role in
judi~alselection was undergoing a transformation. Whiie there were some weak efforts to
undennine Taney's Legal qualincations, Whig objections to the nomination centered on Taney's
role in Jadcson's war with the Second U.S Bank. As one opponent of the nomination said,
"[tlhe nomination of Taney is made for the sole purpose of inçulting and degrading the
Senate."is On a deeper level, Senate opposition to Taney also stemmed from concerns that his
support of President Jackon during the Bank War indicated sympathy for Jackson's views on
the limits of govemmental power, and also on the relative skength of the Executive irt the
151 See Abraham, supra note 133, at 291; TRIBE,supra note 8, at 104. 152 TmE, supra note 8, at 100. 153 HALL,supra note 1, at xli. 154 ABRAHAM, supra note 126, at 101. 155 Qiroted in 2 WARREN,supra note 93, at 13, In the Whig press the nornincc was ungcncrously describcd as a "supplc, cringing tool ofpower," NEW YC~RKCOURIER,23 January 1836, qtroted in id. at 11. JI
American system of government.is6 In addition, the struggle between the Senate and President
Jackson was a stuggle over the proper role of the Supreme Court. As Jadcson had dernonstrated
in the case of Worcester a. Georgia, he rejected the notion that the Supreme Court was the fiinal
arbiter of the meaning of the Constitution. To Jackson, the people reserved power over the
political institutions that they created, not vice-versa.is7 Thus by seeking to control which of
Jackson's nominees arrived on the Supreme Court, Jahnianopponents in the Senate were
seeking to repudiate the President's limited views on the power of the Court. If Whig attempts
to defeat Taney centered on the notion that his political views would shape his views on the
bench, hoivever, simple partisanship also played a crucial role. Even Taney's fiercest
opponents, after the partisan passions of the day had subsided, eventually adcnowledged his
qualifications. Within a few years of the nomination, Henry Clay candidly adrnitted how
deeply his political bias had douded his judgement of Taney. As desaibed by Senator Reverdy Johnson:
AHer Taney had been upon the bench for some four or five years, and Mr. Clay had been the witness, from having practiced before him and read his decisions, of the manner in which tus duties had been discharged, he, as he told me hirnself, after hearing an opinion delivered by the presiding Judge, went to his quarters to see him, and found hirn alone; he said he felt the embarrassrnent necessarily incident to the object of his visit, and after exchanging saiutations suited to the occasion, and being about to leave him, he took hirn 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 1 did; there was no member of the Senate who opposed it more than I did; but 1 have to say to you, and I Say it now in partïng, perhaps for the last tirne,-[ have witnessed your judicial career, and it is due to myself and due to you that 1 should Say what has been the result; that 1 am satisfied now that no man in the United States coufd have been selected, more abundantly able to Wear the errnine which Chief Justice Marshall honored."fiB 156 Indced, the stnigglc ovcr the Second US. Bank was largcly about the proper scopc and fundion of the fedcral governmcnt. In Prcsident Jackson's veto messagc, dclivered on July 10, 1832, hc indicated that the "powers and privilcgcs of the cxisting bank arc unauthorizcd by the Constitution . . . ." In reply, Whig leader Daniel Webster refcrrcd to President Jackson's veto of the Bank Act as an effort to "dcstroy the most useful and most approvcd institutions of the govcrnmcnt." Wcbstcr hrther wrote that "somc arc found opcnly to question the advantagcs of the Constitution itsclf; and many more ready to cmbarrass the cxcrcisc of its just power, weakcn its authority, and undermine its foundations." Both Jackson's vcto message and Webster's rtlsponsc arc reprinted in MAJORPROBLEMS R\I THE EARLYREPUBUC, 2787-1848,385-391 (Scan Wilcntz, cd.) (1992). 157 For a dctailcd look at President Jackson's political philosophy, ser ROBERT-1, ANDREWJACKSON AND THE COME 0 F AMERICAN DEMOCRACY,1832-1 845,337-345, reprinted in id. a t 399-407. 158 38th Cong., 1st Scss., 1363, speech by Senator Reverdy Johnson, March 31,1%4. Reprinten irz 2 WARREN, supra note 93, at 15-16. Had the Senate succeeded in blocking Taney because of narrow political calculations, the nation would have been deprived of the seMce of a well-qualined jurist.159 The case of Justice Taney thus provides a dear illustration of the problems assoaated with the Senate's growing power over judiaal selection.
C. Tyler Fails To Nominate In Five Attempts
John Tyler became President by an accident of history, but it was surely no accident that
£ive out of his six Supreme Court nominations were rejected by the Senate. During his tenure the kequency of rejection for Supreme Court nominees reached its highest level, paralyzing the
Court and making Tyler's one term presidency a case study in the hazards of politicized confirmation proceedings.
As William Henry Harrison's running mate, Tyler completed the "Tippecanoe and Tyler
Too" ticket. Yet despite his presence on their national ticket, Tyler's name was anathema to most Whigs. Though 1840 marked the second tirne that Tyler had been nominated as the party's candidate for Vice President, Whigs instinbively distmsted this conservative Democrat fkom Virginia.160 When President Harrison's unexpected death left Tyler as the nominal leader of the Whig majority in Congress, Whig leaders in Congress questioned how committed th,* new
President would be to the* legislative program. Tyler's deasion to adopt President Harrison's
Cabinet gave the Whigs hope, but this soon proved to be misplaced when Tyler demonshated that he intended to limït the govemment to functions that had distinguished it during the
Jeffersonian ageP Withùi a few weeks, Whigs in the Senate quickly abandoned the administration and rallied around Henry Clay. In the meantime, the Democratic majority in the
159 Despite his infamous opinion in the Drfd Scott case, Chief JusticeTaney has consistently becn ranked as one of the nation's most talented justices, see e.g., BLAU~& M ERÇKY, supra note 1, which devotes an entire chapter to the ranking of judges . See also HALL, supra note 86, at 707-8. 160 Tyler had broken with his party because the strong nationalist tendencies of Jacksonian Democracy disagrced with his states' rights sensibilities. This factor did not endear him to the Whigs, CHARLESA. BWand DmVA~, THEPRESDENTS IN AMERIcAN HISTORY,45 (updated 1989). 161 Slvindlcr, siipra note 1, at 537. cl/
House remained hostile to Tyler, mahghim a Fresident without a party. Within a few rnonths
Tyler's Cabinet collapsed, leaving his administration in ruins.162
Over the next several years, as the gulf between President Tyler and the Whig majority in the Senate widened, Tyler's diances of being renominated For President by the Whig party evaporated. Recognizing this fact, President Tyler began to curry favor with the Democrats.
When Justice Smith Thompson died in December, 1843, Tyler sought to elevate Martin Van
Buren, his primary cornpetitor for the Democratic presidential nomination, with a seat on the
Supreme CoUrt.163 But Van Buren, who saw through Tylefs ploy, was ill-disposed to give up
162 All but one of Harrison's former Cabinet officers resigned in the wake of a disputcd banking bill. The only cabinet member not to resign was Seaetary of State Daniel Webster, who stayed on until 1843, B EARD, supra note 160, a t 197-8. 263 The story was relatcd to Van Buren in a lctter by Scnator Silas Wright of New York: ". . . You havc been made a candidate for thc vacancy upon the bench of the Su remc Court, for a week past, and for a ortion of this time your pros ects havc been saif to be decidedly romising-better even Pan ,ose ofour fnend Spencer. 7ou must not suppose me as attem ting to [oax ou or to play off a jokc upon you. 1 am tellin you the rnerc mith, and for thc last wec! and a half, i' expect your nomination to us as an Assoaa teBustice of the SC of the US. The first intimation of this sort rvhich came to me was from General Mason of Michigan, the father of the late Gov. Mason, whom you doubtlcss know very well. He called upon me very diplomatically and broke the subject to me in the most solemn and formal manner, 1 can usually keep rny face when 1 try hard to do so and have any warning that the effort will be required, but this took me too much b surprise and 1 did not succeed at all, but met the sug estion by a most imrncdiate fit of laughter. &ein that this annoyed the General mon? than I coulckuppose it oucht, thc idea at once occurred to me 8athe had kensent to me hma high quarter. 1 at once changedlrny manner and left hirn at liberty to talk 0-1 discovered too that he had a carriase at the door, and apologized for detaining hirn and leaving his driver cxposcd to the storm, for think he had sat an hour and it rained and blew most violcntly. Hc said that was of no conse uence and rcmained, I think, for full another hour. 1 told hirn very gravely that 1 was sure ou woul a not seek, or accept, the place, if our narne had not been and rvas not to be connected witz the Presidential election at dl, and so gelieving I muçt su pose you ivould bc cornpellcd res ectfully to decline the offer, if made, situated as you was, but reaP ly treated the manncr decorously. Ais seerned to please him, and he talked ve freel ,professed to be stron !y your friend, but was perfectly convinced you could not be electeT~residént,if nominated; and w5 at rvas more sagaaous, entertained quitc as deep a conviction that the consequence of your a pointment as Judge would be rn nomination for president with the certainty of an election. I aged hirn very gravely if Mr. TyLr thought as he did upon that oint, and then he said he had not seen, or convcrscd, with Mr. Tyler upon either subjed, but he l! new that your name had bccn presented to him, as a roper one to be used in his nomination ofludge, and that too by sorne of your best friends- the course of the conversation, he often asked me if l thought either you, or your fnends, could look upon your nomination by the President as an act of hostili to you or as an attem t to degradc you, and whether, if you wcre nominated, your fiends in the ?enatc and even 1 corrlR vote against you, and he seemed anxious to have my amwers upon those points. 1 finally told hirn that to a man for a place upon that elevated Bench, and thus proclaim to the country his fitness an1 that pose by a politicai opponent, could not be tortured into an act of hostility; that no man in this Country was so high as to be authorized to feel himself degraded b the offer of such a position, and that 1 certainly could not vote to reject your nomination for su& an office. These replies seemed to ddioht him, and his answer was qyick and triumphant with deep laughter; Tou are right, ou are rip%t, you con't vote against him. At len h, rising to go, he asked me what u on the whole, hou h O the proposition. I replied, very stea8 il looking him in the face: 'Tell Rr. Tyler from me 8at if he desired to give the whole country a groader, deeper, heherlaugh than it ever had, and at his own expensc, he can cffect it by makin that nomination." This did not seem to pIease him, and he Icft at once. 1 laughed m selfalrnost sic&, not entertaining a doubt, as 1 do not now, that the Capt. had sent hirn to me. Still, I lept the communication wholly to myself, only getting my wife to help me keep il and to help me lau h, and did not hear anothcr word upon the subject for two or threc days, whcn al1 at once the matter %ecameone of public notoriety, and conversation and laugh; and since that time I hir presidential bid- Disappointed, Tyler nominated his second choice, his loyal Cabinet member, John C. Spencer. In Spencer, President Tyler had found an individual whose nomination the Whigs
found particuiarly obnoxious. In his earlier days, Spencer had led the anti-Uay faction of the
Whig party, and he and Clay disliked each other immensely.164 In addition, Spencer had been
very aitical of the President before accepting successive postings in his Cabinet, thus allowing
his opponents to paint him as a political opportunist. As one Whig wrote densively of Spencer,
"1 have no con£idence in the political integriq of Mr. Spencer. . . . He was always the first to foist himself into any politicd party whidi codd give him hopes of preferment."165 Based upon
judgements of this sort, Spencer's nomination was rejected 26-21.166
Tyler next sent the name of Reuben H. Walworth to the Senate. A former US. Representative korn New 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
his impressive career, Walworth had displayed a keen understanding of the Law, prompting his
Mend JudgeWilliam Kent to observe "[nlo court was ever under the guidance of a judge purer in
character or more gifted in taient."l67 Before the Senate could vote on Walworth, however,
Justice Henry Baldw-in's death created a second vacancy on the Court. Tyler attempted to fil1
the spot with future President James Buchanan, but Buchanan deduied. Tyler's second choice, the prominent Pemsylvania Demouat Judge Edward King, accepted the nomination. With the
have it from Davies, who gets his news from Parrnelee, that the Prcsidcnt has been, upon various occasions, detcrmined to send your name, and has considered the movernent one of the most happy which ever occurred to a statesman, and that his friends had had great trouble to keep him from doing it. My information of yesterday, however, is that your prospects are at an end and that Spencer's name will be 'ven to us tomomw. Vrm Bir ren Papers MSS . Letter rom Wright to Van Buren (2 January ,844). Reprintcd in 1 WARREN,supra n00;~93 at 108-1 1 O. 164 Swindler, srrpra note 1, at 537. 165 John 1. Crittenden Papers MSS. Erastus Root to John J. Crittendcn, 3 Fcbniary 1844. Qitoted in 1 WARREN, srtpra note 93, at Ill. 166 HALL,supra note 1, at xlii. 167 Goff, supra note 137, at 36 1. 41
1844 presidential election just around the corner, however, the chances for success were slim.lhP
Predictably, the Whigs in the Senate were unwilling to act on King's nomination, postponing
consideration of it on June 15,1844. Sensing that defeat was imminent, Tyler withdrew
Walworth's name from consideration two days later.169
Tyler now seltled in to wait for the Presidential election that fail. Without a military hero
of Harrison's stature to oppose him, Heruy Clay easily won the Whig nomination. On the
Deniocratic side, Tyler never had a chance. Martin Van Buren attempted to win the nomination
for a third tune, but in the end former Tennessee Governor JamesK. Pok emerged as the
Dernocratic nominee. It was a wise choice, for Polk managed to defeat the powerful but aging
Clay handily.170
With the political will of the Whig majoriîy in the Senate now broken, Tyler resumed his stmggle to n11 the vacancies on the bench. In December he resubmitted King's name to the
Senate, but the Whigs rehised to adupon it. Undaunted, Tyler now seleded Samuel Nelson, a
Jacksonian Democrat and an erninently qualified Judge, to fiU Thompson's seat. Three days later, Tyler nominated JohnM. Read, a weli-respected Philadelphia lawyer with ties to both parties, to 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 confirm Nelson to a seat that had been vacant for fourteen rnonths. When the Twenty-Eighth Congress ended without taking any action on the Read nomination, however, Read's hopes of readUng the US. Supreme Court were dashed-ln
Tyler's faiailure to secure the nomination of 5 of 6 Supreme Court nominees set a record failed appointments that no President has matched. Tyler was at least partly to blame for ths,
168 Because they expected Clay to win the election, the Whigs in the Senate were deterrnined to kcep the two vacant Supreme Court scats empty. It was widely acknowledged that upon his etection, Clay intended to place his lieutenant in theSenate,JohnJ. Crittenden, on the Supreme Court, 1 WARREN,supra note 93, at 116. 169 HALL,supra note 1, 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 coilege, however, Polk won easily, securing 170 of a possible 275 votes, BEARD,supra note 160, at 198. 171 ABRAHAM,supra note 126, at 107. 42
since several of his nominations reflected crass attempts to win political advantage for himself
by manipulating the judiàal selection process. Tyler's intentions notwithstanding, the reai story
behind the President's fadure to con£ïrm 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 equal in the appointment process. It has been widely
acknowledged by scholars that Tylef s nominees to the Court were men of character and
demonstrated legal ability.172 The Senatersrejection of these men cannot, therefore, be blamed
on the quality of the nominees. Instead, Tylefs wealaiess as a President who ladced any
political base in the Senate made it easy for senators to reject his nominees without fear of
reprisal. Under such conditions the Senate elevated its standing to a co-equal role with the
Presidené.
The Senate's action was not without its costs, however. In the aftermath of the Tyler
Presidency, Justice Joseph Story was so despondent that he considered resigning.ln In a letter
to fellow Supreme Court Justice John McLean, Story wrote: "My heart sickens at the profligacy
of public men, the low state of public morals, and the utter indifference of the people to al1
elevated Wtue and self-respect. They are not only the willing victirns but the devotees of
Demagogues."l74 "1 now believe," Story later wrote, "that we are too corrupt, irnbede, and
slavish in our dependence upon and under the auspices of Demagogues, to maintah any free
Constitution, and we shall sink lower and lower in National degradation."im While Story's
thoughts about resigning were the result of several complex factors, the cormpt nature of politia and politiaans during the Tyler era contributed significantly to his thought proces.176
172 See supra note 142 and accompanying text. 173 JU~CESOF THE UN~DSTATES SUPREME COURT (Leon Friedman & Fred Içrael, eds.) 44. 174 lolin Mckan Pqers MSS. Joseph Story to John McLcan, 16 August 2844. Qicoted in 1 WARREN,supra note 93, at 139 n. 2. 175 Iohn Mckan Papers MSS. Joseph Story to John McLean, î3 November 1844. Quoted in id. 276 Story's comrncnts must bc quatified, for he was bitterly disappointcd after the Whig loss in 1844. It appears as though Story felt increasingly isolated on the Court, as a lctter he wrote to Clay after the clcction indicates. In the lettcr Story expressed his regret over the fact that the Whigs would be denied the opportunity to fil1 the two vacant Supreme Court scats, and after hrther contemplation he even considered postponing his rcsignation until after the next election in the hopcs that a Whig would fil1 the vacancy, CARLB. SWIÇHER,5 HISTORYOF THE SUPREMECOURTOF THE D. Justice's Seat Remains Vacant for Twenty-Seven Montlzs
Unlike his predecessor, President James K. PoIk was in no hurry to Eill the vacancy left by
Justice Baldwin's death. During the opening weeks of his administration, Polk focusseci his
attention on political appointments, the tariff question, and the annexation of Texas, ignorïng
the empty seat on Court. In the meantirne, however, Polk was being lobbied by advocates from
Pe~sylvaniaand New Jersey, who each daimed the right to representation on the Court.1"
One such advocate was James Buchananrthe former Pennsylvania senator who was now
serving as Polk's Seuetary of State. On September 29,1845, Buchanan met with Polk to make
the case for his appointment to the CourtYg Avoiding the direct approach, Buchanan
concoded a story, which though based upon the tmth, was meant to secure his nomination to
the Court through subterhge.179 Polk saw through Buchanan's rernarks, however, w-riting in his
journal that "it was manifest from the whole tenour of the conversation that Mr. Buchanan was
very desirous to go on the Bench."lxo Six weeks Iater, however, before Polk had taken any
UmSTATES: THETAN= PERIOD, 183644,222 (The Oliver WcndcII Holmes Devise)(hercinaftcrTHE TANE% PER~ODI Though his opinion was motivatcd by Whig partisanship, Story's dcpression ovcr thc statc of the union, and that of the Court, is indicative of the dcclining stature of the Court which was brought on, among other rcasons, by thc condud of thc Scnatc ovcr Suprcmc Court appointrncnts. '177 Otiginally, the Judiciary Act of 1789 dividcd the country into threc Circuit Courts, cach of which rcprcscntcd ccvcral statcs. In 1837, Congrcss, rcsponding to thc prolifcration of nciv statcs, passcd the Judiciary Act of 1837, incrcaçing thc numbcr of circuits to ninc. Untit 1869, the courts wcrc staffcd by district court judgcs and US. Suprcmc Court Justiccs riding circuit. Whilc this systcm rcmaincd in cffcct, rcgional considcrations playcd a major rolc in the appointmcnts prmcss-cach circuit rcquircd adcquatc rcprcsentation on thc Suprcmc Court. Forexamplc, a11 thrcc mcn nominatcd to rcptacc Justice Smith Thornpson, who rode on the First Circuit, hrid corne €rom his home of Ncw York. SimilarIy, thc men who Tylcr nominatcd to replace Justice Baldwin of the Third Circuit rcprcscntcd Pcnnsylvania, Baldwin's home statc. Hotvcvcr, whcn Polk became Prcsidcnt, advocatcs from Ncw Jcrscy, which was also on thc Third Circuit, attcmptcd to persuadc him to nominatc Trenton's Pctcr D. Vromm, a former Governor and US. Rcprcscntativc from that statc. Though Ncw Jcrsey had not becn rcprcscntcd on the Court sincc thc death of WiIIiam Paterson in 1806, Poik, iikc Tylcr, insistcd upon a candidatc from Pcnnsylvania. On the Judiciary Acts of 1879, 1837, consult WU,supra note û6, at 472,475. For more on thc cffort to nominatc Vroom to the Court, sec SWISHER,supra no tc 176, a t 225. 178 Thc dctails of this meeting are rcportcd in id at 225-7, which forms the basis for what now follows. 179 Buchanan cxplaincd to the Prcsidcnt that though hc had long prcfcrrcd a scat on the Court to any position in govcmmcnt, hc had not bccn offcrcd such a position undcr tcrms hc could acccpt. Buchanan thcn told Polk that hc was fcarhl of his inability to marshall the support of the Pennsylvania dclcgation in Congrcss bchind thc Prcsidcnt's tariff program- In the cvcnt that this happcncd, hc rcasoncd, his position in the Cabinct would undoubtcdly bc a grcat sourcc of crnbatrassmcnt to Polk. Thcrcforc Buchanan told thc Prcsidcnt that if hc wantcd to avoid thc possibility of such an cmbarrassmcnt, hc could prccmpt it by appointing Buchanan to thc Court, id. a t 226. 1 180 1 DIARYOF JAMES K POLK,47. Quoted in id. at 226. 44 action, Buchanan withdrew his request to be nominated. He would rather be Chief Justice than
President, he told Polk.181 In fact he was secretly dreaming of the presidency. HaWig abandoned the prospect of nominating Buchanan to the Court, Polk now set out to
End another nominee. Buchanan urged him to renominate John M. Read, but Pok demurred in favor of a nominee whose views on the Constitution comported with his own.182 Polk decided on George W. Woodward, a rninor state court judge from Pennsylvania. Polk had good reason to assume that Woodward would be conEirmed easily: Not only was Woodward a loyal
Democrat, but Justice Baldwin's seat had been vacant for more than eighteen months.
Unfortunately for the nominee, however, the nomination became caught in the crossfïre of intra- state political rivalries. The scales were tipped against Woodward by a Simon Carneron, a senator hmhis home state, who invoked the longstanding privilege of senatorial courtesy~~ to challenge the nomination.ia
182 Had Chief Justice Tancy vacated his office by death or resignation during Polk's term in office, it is questionable whcther the President would have considered Buchanan for the post. Polk was espeaally close with Justice John Catron-a Jackson appointce fromTe~essecwho was instrumental in Polk's election-and would likely have chosen him to succeed Taney. This condusion is supported by a Ietter rvritten to Justice McLcan by Richard Peters, the former reporter of the Suprcrnc Court. On 6 Deccmber 1844, aftcr Polk's clcction, Petcrs wrote to McLean, "May hcavcn in its tendercst mercy prescrvc the life of our good Chief Justice. Critron will succced him, if he should, while Polk is Prcsidcnt, bc callcd to a bettcr world,"id. at 224. 182 ld. at 226. 183 The custom of scnatorial courtcsy datcs back to the carlicst days of thc RcpubIic. Basically, this practice is a dcfcnsivc mcchanism that \vas introduced by senators in the 6rst Congress to prcvcnt the appointrncnt of their political enernics to high levcl fedcral positions. in practicc it works like this: If thc Prcsidcnt nominates a person whom the home-statc scnator finds "pcrsonally obnoxious," that senator may invoke Scnatorial Courtcsy to dcfcat thc candidate. This astom is almost atways honored by members of the Senate, provided that the scnator belongs to the samc political party as the President. The first known instance of senatorial couttcsy occurred in 1789, whcn both senators from Georgia opposed thc nomination of Benjamin Fishbourn, who had been selected by Presidcnt Washington to serve as a naval officer in thc port of Savannah, HALL,srrpra note 86, at 771-2.
184 The tircumstanccs surrounding Woodward's rcjcction arc vcry interesting. Simon Carneron, the principal architect of Woodward's Supreme Court dcfcat, had rcccntIy bcen dectcd over Woodward to thc Senate seat vacatcd when James Buchanan joined Polk's Cabinet. Though Woodward had been chosen by the narrow Dernocratic majonty in the Pcmsylvania LegisIaturc to succced Buchanan, when Cameron crossed party lincs and solicited the aid of :h Whigs it was hc, and not Woodward, who bccarne Pennsylvania's next senator. James G. Blaine later wrote that it was because of this thatM[tlhePresident endeavorcd to heal Judgc Woodward's wounds by placing hirn on the bench . . ." But whether or not this is truc, it is apparent that Senator Cameron invoked senatorial courtesy against thc Woodward nomination. Woodward's defcat cannot be ascribed solely to the opposition of Senator Cameron, hotvever. James Buchanan, whose own choice, John M. Read, had becn passcd ovcr by the Prcsidcnt, contriibuted to Woodtvard's defeat as well. Buchanan not only faiied, in word or in deed, to support the Woodward nomination, but may have convinced some of his friends in the Senate to join the Whigs in oppasing the nomination. Whether or not this occurred, President Polk While Woodward's name languished in the Senate, Polk attempted to steer another
nominee through its rocky shoals. During the Ml of 1845, the last surviving mernber of the
Marshall Court, Associate Justice Joseph Story, diedW Story's death provided the President
with a unique opportunity to alter the balance of the Court by replachg a conservative Whig of
the old aristocratie order with a dyed-in-the-wool Jacksonian Dernocrat. Polk chose Levi
Woodbq, a former superior court judge, Govemor, US.Senator from New Hampshire, and
Cabinet officer to both Jackson and Van BurenJS The choice was a good one, widely hailed by
Democrats, and Woodbury was duly conhed 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.~87
By now the Baldwin seat had been vacant for over a year and a half. Secretary of State
Buchanan again expressed interest in being nominated, but Polk, who evidently w-ïshed
Buchanan to remain in his current post, did not actW hstead, ignoring both the nineteen
month vacancy on the Court and the huge accumulation of business on the Thrd Circuit, Polk
said nothing on the subjed for several months. When Polk finaily recomrnended Pemsylvanian
Robert C. Gner to the Senate, in August 1û45, justice Baldwin had been dead for more than two
years. This hct seems to have weighed upon the Senate, for it confïrmed Gner in oniy one
day,lx9 but this did little to mitigate the fact that the Court had been disabied for several years.
E. Appointrnents and the Court in the Years Leading up to the Civil War
The frequency of confirmation for Çupreme Court Justices improved slightly during the suspectcd as much, and relations bchvecn he and Buchanan were straincd for somc time aftenvard, SWISHER, supra note 176, at 227-8. 185 Story's loss wris kit throughout thc nation in a way that trrtnsccndcd the divisions of both party and section. Chief Justice Tancy, a Southern Dernocrat, said of the Massachusetts Whig Story, "[t is herc on this bench that his rcal worth was best understood, and it is here that his loss is most scvcrely and painfully fclt," 1 WARREN,wpra note 86, at 142. 186 HALL, srlpra notc 86, a t 937. 187 The vote was 20-29, Swindlcr, supra note 1, at 536. 188 SWISHER,srrpra note 176, at 228. 189 HALL, supra note 2, at xlii. a 1850s, but the balance of power over appointments continued to shift in the Senate's hvor. President Taylor's death less than halfway through his presidency vaulted the Vice President
into the White House for only the second tirne in American history. If the Tyler presidency was
an accurate yardstick, however, when it came to confirming Supreme Court Justices, President Millard Fillmore had his work cut out for him.
In the early going, Resident Fillmore de£ied the Tyler legacy by secufing the co~ation
of Benjamin R. Curtis, a Harvard Law graduate recornmended by Secretary of State Daniel
WebsterJw By the theJustice JohnMcKinley died in the ssummer of 1852, though, the sectional
tensions that were to unleash the Civil War had split the Whig party in two. The split came
over the Compromise of 1850, a measure that dealt with the issues raised by westward
expansion and slaveqd9i Northern Whigs opposed the measure prirnarily because of the
onerous Fugitive Slave Law, while most southern Whigs supported it. As the President of a
divided party, Fillmore was in an impossible position: If he opposed the legislation, he was not
being faïthful to the interests of his southern Whig constituents, but if he supported the compromise, he wodd dearly run afod of the more powerful northern bloc of Whigs. In the end
the President supported the proposal, but at a high price: Northern Whigs abandoned the
President in droves, negating the possibility of a second Fillmore term.192
The deep split within the Whig party meant that Fillmore couid not rely on party unity to
190 W, supra note 86, at 211. 192 The Compromise of 1850 tvas a legislative package drafted by Whigs Daniel Webster and Henry Clay and Democrat Stephen A. Douglas to address the issue ofsiavery in the temtories. The Compromise of 1850: 1)Admitted California as a h.ee state. 2) Organized New Mexico as a territory on the basis of popuIar sovcreignty. 3) Organized Utah as a territory, also under popular sovereignty. 4) Abolished the slave trade, but not slavery itself, in Washington, D.C- 5) Enactcd the Fugitive Slave Law, which established scvcre fcdcral punishment for obstnicting the efforts of slaveholders to recovcr their slaves in any state, admade the federal government responsible for recapturïng and rctuming runaway slaves who had escaped to kee terrïtories. Though Webster and Clay had becn the printipal architects of this compromise, most northern Whigs opposcd it and objected to President Fillmore's support of the proposais. The opposition of northern Whigs dramatically effcctcd Fillmore's effectiveness as Rcsident and precluded the possibility that he would be renominated as the Whig candidate in 1852. 192 BEARD, supra note 160, at 57. a accomplish anything in the Legislature. In addition, the chances of future Whig electord
successes seemed bleak, further weakening the possibility of cooperation.1~In the Senate,
where the Democrats enjoyed a cornfortable majorïty, the future of the Whigs looked quite
feeble indeed. Thus when Fillmore submitted the name Edward A. Bradford, a respected
Louisiana lawyer, to replace Justice John McKùiley, Democrats in the Senate dedined to act
upon the nomination. Two months later, Democratic predictions were fulnlled. The Whigs
were soundly defeated in the presidential contest, and the Democratic majority in the Senate
rose from 22 to 38-294
Fillmore's chances for a successfd nomination were now considerably weaker, though the
President rernained willfully ignorant of this fact. Thinking, perhaps, that the Senate would not reject one of its own, the Resident subrnitted the name of North Carolina Senator George
Badger. Immediately, however, southern senators aiticized Badger's support of the Wilrnot
Proviso,1% while Free-Soilers scomed him for beuig too sympathetic to the proslavery causeP
Badger was also opposed by senators from Alabama, Louisiana and hfississippi because he
resided outside the Fifth Circuit.197 In the end not even senatonal courtesy was enough to Save
the nomination. On February 11,1853 the Senate voted 26-25 to postpone the nomination
indefinitely.198
The President next tned to persuade Judah P. Benjamin, a prominent Louisiana attorney,
293 In 1852, the Whigs nominatcd Ceneral Winfield Scott as their presidential candidate. Scott took no public position on any issues, and thus the Whigs were able to conduct se~3ratecampaigns north and south of the Mason- Dixon Iinc, as they had done in 1848. This tirne, however, southern Whigs repudiated Scott for his failure to embracc the Compromise of 1850. In the North, the influentid Whig leader Daniel Webster rehsed to support Scott and pronounced the disbandment of the Whig party. As a rcsult of thcçe divisions, thc Whigs were soundly beaten in the election of 1852, carrying only four of thirty-one states (Mass., VT., KY., Tenn.,). Although the elcction had becn far closer than the clcctoral vote indicated, the Whigs suffered a sever psychologica1 blow aftcr the election and nevcr again wriged a national camprrign. 194 Swindler, szrprrr note 1, at 538. 195 Introduccd by David Wilmot, the Free-Soi1 Democrat kom Pennsylvania, the Wilmot Proviso simply provided that the tederal govemment would prohibit the expansion of slavery into aay terntory acquired from Mexico. 196 2 WAKKM, supra note 93, at 243. 197 SWISHER,supra note 276, at 240. 198 Swindler, supra note 1, at 439. to allow his narne to go up to the Senate. But Benjamin, who had recently been elected to the
Senate, had no desire to throw his hte to the shifting political winds. Instead he encouraged
Filln~oreto nominate his law partner, William C. Micou.l* By now, however, it was obvious that "Advice and Consent" was, as historïan William Swindler has noted, "a simple matter of party lining."2m When Fillmore's term ended on Mardi 4, Micou's candidacy ended with it, dearing the way for Resident Franklin Pierce to successfully nominate Alabamian John
Ardubald Campbell.
In just over a generation the Senate's roIe in the confirmation process had undergone a fundamental transformation. Earlier in the cen- individual Presidents had been given wide latitude in selecting Justices with only rare interference Erom the Senate. By the Iate 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 weli for the Supreme Court, for as the process for selecting Justices becarne politicized, those diarged with the task of judging were tempted to view their role as a political one.
F. The "Dred Scotî" Decision
In the years leading up to the Civil War, as the distrust between North and South rnounted, the possibility of a politically brokered solution receded. Though the Compromise of
1850 bnefly preserved the delicate political balance in the country, the second party system coilapsed eventudy 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 aIready replaced discourse as the primary means of codict resolution. During the summer of 1856, a proslavery gang several hundred strong
199 1 WARREN,supra note 93, at 245. 200 Swindler, supra note 1, at 539. 201 See supra note 191. 202 The Kansas-Nebraska Act organized the two territories on the basis of populûr sovereignty. 49
sacked the Free-Soi1 tom of Lawrence, Knnsas Soon &ter, New York abolilionist John Brown,
together with his four sons, responded by murdering five proslavery settlers in neighboring Pottawatomie, Kansas. Eventually ths violence spiIled over uito the Congress, where Senator
Charles Sumner was beaten savagely with a cane on the Senate floor by Congressman Preston
Brooks, whom Sumner had aiticized for his support of slavery. In this charged environment,
neither 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 to the problems facing the country.203
As events would prove, the public's faith in the Court was bady misplaced. After years
of politiàzed confirmation proceedings, the Court had become a very poiitical body. This
became evident when the Court finally addressed the slavery question in Dred Scott v.
Sanfordzm Writing for the rnajority, Chef Justice Taney's prinapal arguments-that blacks
were not citizens of the United States, and that Congress lacked the authority to prohibit slavery in the temtones2m-removed the slavery question frorn the political and legal arena and
hastened the dedine into civil war.206 In the North, observers piiloned the decision as a flagrant
abuse of judiaal powerP Notwithstanding the question of whether the Dred Scott decsion was
an abuse of judiaal power, it is tehgthat a question of such vital national importance was ieft
to the least democratic branch of governent to deade. It would be decades before the
203 This view was held by several of the Justices thernsetves. In his concurring opinion in the Dred Scott case, Justice James M. Wayne of Georgia argued that "settlement . . .by judicial decision" was integral to the "peace and harmony of the country." Dred Scott a. Sanford, 60 US. (19 How.) 455. Qrtoted in Friedman,srcpra note 1, at 5. 204 60 US. (19 How.) 393 (1856). 205 Because each Justice wrote his own opinion, there has been some historical controversy over what the Court's actual holding was. Howcver, as one historian has wntten, despite the vanous opinions "there can be no doubt that Taney's opinion was accepted as the opinion of the court by its critics as welI as its defenders. . . . As a matter of historical reality, the court deaded what Taney dedared il deaded," B. SCHWARTZ,FROM CONFEDERATION TC- NATION: THE AMENCAN CON~ION,1835-1 877 at 333-4 (1973). Qrtoted in Friedman, supra note 1, at 6 11-14. 206 Lino A. Craglia, The Growth of National litdicial Power, 14 NOVAL. REV. 63 (1989). Similarly, Professor Schwartz has argucd that with Dred Scott, "collapscd the practical possibiiity of rcsolving by political and IegaI means the issues which divided the nation," Schwartz, supra note 205, at 130. Qrtoted in Friedman,srtpra note 1, at 6. 207 Friedman, supra note 1, at 6. In 1865, the year after Taney's death, Charles Sumner opposed an appropriation for a bust of the Chief Justice, tehgsenators: 'The name of Taney is to be hooted down the page of history . . . . He administered justice at last widcedly, and degraded the judiaary of the country, and degraded the age," id. Sipreme Court muid remver hom this "relbidicted wauiid."2Q8
a 208 This phrase was given currency by Charles Evans Hughes, see id. at 6 n.7. SECTIONIV: THETRANSFORMATION IN SENATE RESPONSE TO SUPREME COURTNOMINATIONS (PART 2); RECONSTRUCTIONAND BEYOND
During the Reconstmction era, a new highwater mark in the political coloration of Supreme
Court appointments was reached. Several factors contributed to this development. First, the
Dred Scott deasion became somewhat of a self-fulfilling prophecy: If the Court wanted to act iike a legislative body, it would be treated as one. A second factor, closely iinked to the first, was the Codsbehavior during the Civil War. Though the war clearly shifted the focus away hom the confirmation process and pointed a spotlight at the constitutional pressures induced by the sectional conflict, the Justices' limited view of presidentiai power during wartime won the
Court few admires on the Union side. Finally, during Reconstruction, Radicals in the Congress were detennined to enact an ambitious agenda over the protests of the Judiaq, bringing these two branches of government uito confid. Taken together, these factors provided the rationde for greater senatond control over appointments, and after the war this sparked a conflict that was waged upon the battlefield of Supreme Court appoinûnents.
A. The Court Dun'ng the Civil War And Beyond
From the outset of the war, Abraham Lincoln took a broad view of his powers. As the
President of the United States, he intended to preserve the Union at any cost. Towards that end, many of the limits President Lincoln imposed upon ad liberties during wartime were, as historian Richard Friedman explains, "of dubious constihitionality."209 Yet while moçt northemers accepted the President's extralegai behavior "as necessary to Save the Union," the
Justices of the Suprerne Court were unwilling to tolerate encroadunents upon the Constitution in the seMce of that or any other goal.210 This conflict exacerbated existing tensions, and made a showdown between these two branches of govemment increasingly likely as the war pr~gressed.
The first major conhontation came over the Ex parte Merymun case.211 John Menyman
210 rd. 211 17 FED. CAS. 144 (C.C.D.MD. 1861) (No. 9487). was a pro-Confederate political leader 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 domon saboteurs iike Merryman,
who had helped to destroy several Union railroad bridges. bferryman diallenged the legality of
the President's action by petitioning Chief Justice Taney-the presiding judge on the Circuit
Court at Baltimore-for a writ granting his heedom. Despite persistent questions about
whether the issue raised by Merryman's petition was-due to its rnilitary and political
nature-a proper question for the Court to hear, Taney granted the writ.212 When the military
commander instmcted to release Merryman rehsed to do so, Taney even went so faas issue a
writ calling for that officer's arrest.213 This too was ignored. The Chef Justice 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 keedom than attracting Lincoln's attention. Taney
expressed great surprise at the notion that the Executive could suspend the writ. As he wrote
in his deasion, the Constitution authorizes the suspension in &de 1, an enumeration of
congressional powers that "has not the slightest reference to the Executive department."ziq
Taney described the President as an administrator whose job was not to make laws, but only to
ensure their faithl execution.2ls
Taney's deusion may have been sound constitutional law, but Republicans praised
Lincoh and accused the Chief Justice of giving "aid and comfort to public enemies."216 Even
212 HAU, supra note 86, at 153. 213 This writ ofattachment never reached the rnilitary commander at the fort where Merryman was being held, because the marshal carrying it was denied permission to enter the fort, Friedman, supra note 1, at 7. 214 17 Fed. Cas. at 248. Authorïzation for the suspension of the writ of habeas corpus is found in US.Const. Article 1,s 9, dause 2. Tanefs argument was based upon the notion that since the whole of Article One is devoted to a description of the powers of the Legislahire, thcre could be no grant of powcr to the Executive branch found therein. 215 Taney ordered that a copy of his decision be transmitted to the President, who respondcd in his 4 July 1864 message to Congress that his action was justified by his constitutional oath to cnsure the faithful execution of the laws, and by the fact that the Constitution did not expressly state which branch could suspend the writ of habeas corpus. Lincoln proclairneci that hc doubted that the Framers intended no action be taken to protect the publicsafety until such time as Congress could convene, Fricciman, supra note 1, at 7. 216 Qrroted in id. at 8. Criticism of the Chief Justice çvas based upon the notion, embodied by Senator Henry ' Wilson's cornrnents, that Taney "never gave one cheering çvord nor perfonned one abto protect or save" the Union, id. a JJ after the war, though President Lincoln had managed to secure the appointment of four
Associates and a replacement for Taney, respect for the Court was not restored. Many shared
the sentiments of Secretary of War Edwin Stanton, who lamented that "[tlhe judiaal machinerv
seemed as if it had been designed, not to sustain govemment, but to embarrass and betray it."217
hi the celebrated Ex parfe Milliganzis case, the Court did little to restore the public's faith.
The case pertained to a jurisdictiond dispute between military and avilian courts in Indiana
during the war. Lmbdin P. MilIigan and several antiwar Democrats were arrested and charged
with conspùacy to seize munitions and liberate Confederate prisoners from northern prison
outposts. Though the civilian courts in Indiana remained open, the presiding military officers
opted to by the defendants in a miLitary court. Milligan and two others were found guilty and
sentenced to hang, but the Circuit Court in Indianapolis overtumed the convictions and sent the
case to the Supreme Court.
The Justices dedunanùnously that the militq court lacked jurisdiction and ordered
MiKgan and his CO-conspiratorsreleased. Justice David Davis of Maryland wrote the opinion
for the majority, arguing eloquently that the Constitution was never suspended in an ernergency:
The Constitution of the United States is a law for mlers and people, equaily in war and peace, and covers with the shield of its protection al1 classes of men, at al! times, and under aLl circumstances. No doctrine, involving more perniaous conçequences, was ever intendcd by the wit of man than that any of its provisions may be suspended during any of the great exigencies of goverrtment.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 of their entire Reconstruction program.220 With violence against the newly
emanapated blacks reaching grave proportions in the South, the use of military courts had beei-L
217 Qrtoted in Friedman, supra note 1, at 8. 218 71 US. 2 (1 866). 219 Id. at 120-121. 220 Swindler, supra note 1, at 539. a key element of the RepubIican strategy to protect them. When President Andrew Johnson
began to vigorously apply the prinaple announced in Milligan to all cases in the South where civüians were awaiting miütary trial, Republicans could take no more. Republican House leader
Thaddeus Stevens expressed the outrage of his coileagues, calling the Mzlfigan decision even
"more dangeroüs in its operation" than the Dreci Scott deàsion and hinting that Republicans
wodd not be fettered by the Court.221 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 deasion, now began to flow heely. In January 1868, a bill
requiring a unanimous Court to invalidate an Ad of Congres attracted wide support in the
House of Representatives. The measure was eventudly defeated, but a watered domversion
of the same bill passed the House by an overwhehing rnargin.222 in the Senate, efforts to curb
the Court's power went even Wer. Illinois Senator Lyman Trumbull introduced a bill
dedaring the Reconstruction Acts to be beyond the reach of judicial review, but the bill was never considered. Instead, the Senate focussed on another Trumbull sponsored bill, this one
proposing a moratorium on Supreme Court appoïntments until the number of Justices was reduced to seven-w As one proponent in the House bragged, "this bill abolishes the Judge
whose nomination the President sent to the Senate."u4 While the bill's passage certaùily prevented the President frorn seating Homer Stanbery on the Court,= the impact of the bill
221 Friedman, supra note 1, at 9. î2î The bill required a two-thirds rnajority of the Court to overturn Congressional legislation, 1 CHARE FAIRMAN,MSTORY OF THE SUPREMECOURT OF THE UMTED STATES:RECON~UCTION AND REUNION, 1864-1868, 65. 223 The number of Justices had bcen increased from seven to ten in 1863, Act of Mardi 3,1863,12 Stat- 794. See &O, Friedrnan,supra note 1, at 22; Wu, supra note 83, at 475. 224 Swindler, stcpra note 2, at 539- 225 Stanbery was generally well regardeci by RepubIicans in the Senate, and consequently this legislation must be seen as more than an attcmpt to deny him confirmation, see Henry Abraham & Edward Goldberg, A Note on the Appointment of Tristices to the Supreme Corlrf of the United States, 46 A-BA JOURNAL 219-220 (2960). This is borne out by the that fact that aAer President Johnson signed the Act into law, the Senate promptly confirmed Stanbery as Attorney General, Friedman, supra note 1at 22 n, 215. For an explanation of why President Johnson willingly signed legislation that esscntially stripped him of his power to appoint Justices to the Court, see id. at 22 n.117. JJ
proved to be far greater: The legislaCion, which becme known as the Judiaary 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 also largely responsible for the
Court's reduced prestige. If the Justices had ushered in a period of temporary judiaal decline
with Dred Scotf, the Senate, through its role in the confirmation process, institutionalized this dedine. By reinforcing the belief that the Court was a political institution, senators diminished public respect for the Court greatly. This was amply demonstrated in the pages of The Nation, which, more than a decade after the inhous Drrd 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 to stand. . . [But tlhe Supreme Court . . . became in a few short years the most despised of American institu tions.226
Similar denunciations appeared during the same penod in The New York Times, which accused the Court of "leading society to an unfathumable abyss of degradation and disaster."ui Such antagonistic attitudes towards the Court reflected deep and underlying concerns about the legitimacy of the Court's decisions. As the least dernocratic branch of govemment, some of the
Court's deasions smadced of usurpations of the power of its coorchate branches. This behavior, however, was dearly linked to the Senate's repeated efforts to use the confirmation process to control the Couxt. 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 NA~ON477,478 (1 8691, quoted in Friedman,srrpra note 1, at 21. 227 THENEW YORK TIMES, Dec If, 1869, at 4, col. 3, quoted in Friedman,slrpra note 1, at 21 n.110. B. Reconstruction Appointrnents
If the Civil War suspended the smaller codia being waged over conbol of Supreme Court
appointments, the passage of the Judiaary Ad of 1866 resumed this struggle. The Judiciary Act
of 1869 restored the number of Justices 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 mere party machine; to be manipulated, built up and pded
domas party exigenues require."ug In such an aûnosphere, it was not surprising that the
confïrmation process becarne Merpoliticized.
As the candidate of the Radical Republicans, President Uiysses S. Grant was destined to
enjoy a better reiationship with the Congress than his predecessor. When it came to Supreme
Court appoinûnents, however, it was soon apparent that the Senate intended to keep a dose
eye on Grant. Though Grant's ktnominee to the Court, Attorney General Ebenezer Hoar, was
an excellent candidate,= a majority in the Senate formed a coalition to oppose him. Some
maintained that they wished to see the seat awarded to a nominee £rom the "Reconstnided"
South, but most were opposed to Hoar because of his earlier support for unpopular avil
seMce reforms and his opposition to the Johnson impeachment campaign-rw
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. Griet announced hxs
decision to resign effective February 1,1870. Immediately, majority elements in both 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 hstorian William
228 Friedman, supra note 1, at 9. Professor Friedman's description of the Court in this pei-iod tends to corroborate Edward Bats's testimony: "The crucial issues of Reconstruction put a premiurn on ideological control of the Court, and Congress was encouraged in exerasing that control by prevailing views of the political nature of the Coufls role, by the Court's relatively low standing, and by the apparently political actions and responses of the Justices thernselves,"id. at 21. 229 Vieira & Cross, supra note 13, at 325. 230 Friedman,srtpra note 1, at 28; see also Swindlcr, supra note 1, at 540. 231 Abraham & Goldberg, supra note 225, at 225. Stvindler recalls:
An arrogant oppominist who as a Cabinet member had inhigued 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. In 1867 he had had the effrontery to didate a section of the Military Appropriation Act of 1867 requiring that the President issue al1 military orders through the Secretary of War and that any other military cornmands of the Commander in Chief should be null. From February, to May, 1868, when Johnson's impeachment failed, Stanton had bamcaded his office and refused to permit access to War Department records. Only when the prospect of ousting the President vanished did Stanton grudgingly give up his resistance.232
Despite the nominee's ladc of qualifications, President Grant açsumed 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 HOKwas defeated 24-3334
C. The Weakening of the PresidenYs Role
The highwater mark of Senate hegemony over appointments came during the Grant
Presidency. As Richard Friedman notes, the Reconstmaion expenence had fostered the belief that "the Court was not to be treated reverentidy, but rather in the open hurly-burly of partisan and sectional politics": Given such attitudes, "significant senatorial partiapation seemed perfectly appropriatd'235 During the Grant administration, key leaders in Senate like
Roscoe Conkling, George Edmunds, Charles Sumner, and Simon Carneron came to play a preemùient role in formulating policy. As Senator George Koar of Massachusetts later recounted in his autobiography, "[ilf they visited the White House, it was to give, not to receive advice. . . . Each of these stars kept to his own orbit and shone in his oivn sphere, within which he tolerated no intrusion fkom the President or from anybody else."% As this trend developed,
232 Swindler, supra note 1, at 540. 233 Stanton was confirmed by a 46-11 vote that sanie day, HALL, supra note 1, at xloi. 234 ln. 235 Friedman, supra note 1, at 35. 236 GEORGEF. HOAR,2 AUTOBIOGRAPHYOF SEVENTY YEARS,46 (1903). Qiroted in Hams,supra note 61, at 78. 58
the influence of the President over judicial selection dedined. This was amply demonstrated by
the Senate's response to three of Grant's nominations.
The rnost brazen demonshation of the Senatefs power over appointments in the post-
Civil War era resulted in the nomination of Stanton. Thmy,as Professor William Swindler
notes, "the question of what the COU^ might have become with the addition of a rancorous and
domineering politiaan"D7 was obviated by Stanton's death. Stili, 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-m
Another example of Senate arrogance came less than six weeks after Stanton's death,
when Grant nominated New Jersey iawyer joseph B. Bradley to fill Justice Griefs seat. When
Bradley's confirmation quiddy ran into trouble, Çenator Edmunds introduced a motion that the
Senate Judiciaq Committee be instructed to consult with the Executive on the nomùiation.~g
This attempt to strengthen the role of the Senate at the expense of the President failed, but that
such a manoeuver was even attempted demonstrated a dangerous disrespect for the Executive.
This pattern repeated itself during GranYs second term. During the opening days of 1874,
the President chose sitting Attorney General George H. Williams to succeed the late Salmon P. Chase as Chief Justice. Though he had previously served as Chef Justice of the Oregon
temtory, concerns over his judiaal fitness expressed by the organized bar quiddy derailed the
Williams nomination.240 While the Senate ultimately voted to postpone the nomination,
237 SwindIer, supra note 1, at 540. 238 Grant, of course, was partially to blame for this episode as well. For while prudential considerations may have lefi 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 of the nominec, Grant disingcnuously Iegitirnized events by saying that he had becn fcarfui of making the appointment without the Scnatc's "indorserncnt," qrioted in Friedman,sitpra no te 1, at .%. 239 Id. at 35-6. 240 Spccifically, the New York Bar Association passcd a resolution opposing Williams on the grounds that the nomination "disappoints the just expectation of the Icgal profession and does 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 uphoId the dignity of the highest National Court,"2 WARREN,supra note 93 at 556, qrioting NwYORK TRIBUTE,8 January 1874 pl. Other charges revotving around the fraudulent use of Justice Ocpartment a hnds while Williams was Attorney General did not help his chances, Vieira and Cross, supra note 13, at 326. 59
President Grant rehised to withdraw it. During the stalemate that toilowed, the President's
dose hiend, Senator Roscoe Conkling of the Judiciary Committee, offered a compromise: Let
the members of the Supreme Court choose the Chief Justice from among their ranks.241 Whether
the President supported Conkting's proposai is open to question, but it is clear that the Senate
had no reservations about further weakening the President's role. Eventudy the Judiciary
Committee rejected the idea, and Williams forced Grant to withdraw his narne, but not before
the President had suffered considerable embarrassment.
D. The Decline of Partisanship
As the partisan passions that accompanied the Civil War and Reconstruction subsided,
the need to control Supreme Court appoinûnents 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 1880s, however, President Grover Cleveland was able to secure
the appointment of the man who had drafted Mississippi's ordinance of secession, Luaus Q.C.
Larnar.243 Thereafter, though the country feil short of President Benjamin Harrison's goal to
bnng about the "cornplete disappearance of sectional sentiment from American politics,"24 the
strict politics that had shaped Reconstruction appointments loosened. This was demonstrated
in 1894 when Cleveland nominee Edward D. White, who had fought for the Confederacy during
the Civil War, became the £irst nomlnee in 15 years to be nominated and conûrmed on the same
241 The proposa1 was described as a "happy expcdient to let Mr. Williams down gracckiliy," 2 WARREN,supra note 93, at 556. 242 In the opinion of historian Charles Warren, Cushing %vasa superbly qualified candidate who "probably excelled either Marshall or Taney or Chase," id. at 557. For a full account of the Cushing nomination, consult Fricdman,sltpra note 1, at 24-25; Harris, supra note 61, at 76-77. 243 Since the war, Lamar had managed to rehabilitate himselfin the cycs of northemers. In 2874, hc had delivcred a notable culogy celebrating the iife of Charles Sumner, and he was instrumental in organizing southcm support for the Elcctoral Commission of 1877, Friedman, sarpra note 1, at 38. 244 THENEW YORK TIME, Feb. 20,1893, at 4, col. 1, qrtoted in Friedman, sttpra note 1, at 41. 245 No nominee had achieved this remarkable feat since 1869, when the Radicals hastily pushed the namc of a Edwin Stanton through the Senate. E. Senatorial Courtesy Deruils Cleveland's Nominees
Though the partisanship which marked confirmations during Reconstruction now receded, political considerations remained at the fore. One way senators retained their iduence over judicial selection was through the introduction of senatonal courtesy. Since the earliest of days of the Republic, senators had recognized, in the words of Professor Henry Abraham, "the need for solidarity to prevent a president from appointing a senatofs political adversary to high office."2* This practice began during President Washington's first round of appoinmients in
1789, when Georgia's two senators, backed by the entire Senate, forced Washington to withdraw the nomination of Benjamin Fishbourn to a naval pstin Savannah.247 By the dose of the nineteenth centuxy, this practice had become so entrenched that senators were easily able to broaden its application to the nomination of Supreme Court Justices.
In July 1893, Justice Samuel Blatchford of New York died. To replace him, President
Cleveland-now badc in the White House after sitting out the Harrison presidency-nominated
William Homblower, a Columbia Law School graduate who had made a name for himseif practicing corporate law in New York City.2" Homblower was wellqualified, but he had chosen his enemies poorly. Earlier in his career, serving as an election commissioner in New
York, Hornblower had exposed corruption in the election of Isaac H. Maynard, an appeals court candidate who was dosely allied with Senator David B. Hill. Çenator Hill never forgot the slight, and rewarded Homblower by opposing his nomination.249
Though Cleveland found this condud distastefui, (and even flirted with the idea of renomùiating Homblower,) the President eventuaily 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 dso served as legal counsel against Boss Tweed, the head
246 KAU, supra note €46, at 772 247 Id. 248 Id. at 412. 249 Id. t3.L
of New York City's infaxnous politid machinem Yet again Senator HilI intervened, this time with the help of New York's other Senator Edward Murphy, to block Peckham, who had
apparently made the mistake of being too independent of the New York Democratic Party
machine.zl
By the end of Cleveland's second term, 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 Wheeler and Peckham were men who not only exposed corruption during their
careers, but who demonstrated independence £rom prevailing political institutions. The fact
that this independence doomed their nominatims was testament to the Senate's growing power.
Indeed, the Republican politicianç who dominated the Senate during Reconstruction had treated
the Court "as an instrument of power,"252 and the Democrats, when in the rnajority, acted in
much the same way. Justices of the period were expected to act, and often did ab, like
partisan politicians, and this did great violence to public faith in the Court. As the historian
Charles Fairman wrote, "[s]ubrnission to the Court as the h-ue voice of the Constitution
presupposes an estabiished coddence in the lofty disinterestedness of its members-something
that . . . the [Reconstmction] Court did not have."E3 Thanks in large measure to the those in the Senate, "[tlhe Supreme Court. . . became in a few short years the most despised of
Arnerican Institutions." 2.3.4
- 250 Swindlec, srrpra note 1, at 542; see ais0 HALL,srrpra note û6, at 627. 252 W,s~rpra note 86, at 627. 252 STANLEYKW, JUDICZAL POWER AND RECONS~RUCIIONPOUTICS 8 (1969), qrroted in Friedman, supra note 1, at 19. 253 FAIRMAN, srrpra note 222, at 514. a 254 19 NATION477, 478 (1869), qrroted in Friedman,supra note 1, at 21. SECTIONV: THETRANSFORMATION IN SENATE RESPONSE TO SUPREMECOURT NOMINEES (PARTXII)
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 diange dramatically. In the wake of the Peddiam and Homblower
nominations, many observers cried fou1 against the diay tri& used by the Senate.= If the
Senate class of 1894 seemed "callous to outside opinions," as The NmYork Times reported,
wïYithui a decade power would shift badc towards the presidency.=
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 dernonstrated by President Grover Cleveland's appointment of Confederate veteran Edward
White in 1894, and again during William TaWs presidency with the confirmation of Horace
Lurton and the elevation of White to Chef Justice,u7 dearly undermined the position £rom ' which Republican senators had influenced judiaal selection during Reconstniction. The new role of a Justice was aptly described by The Boston Herald, which noted that a Justice "does not sit exdusively for [one Statej, he administers Law for the whole nation."ug
The "nationalization"of the Court also Led to the abolition of the Justices' circuit riding duties in 1891.259 Previously, each Justice had been required by law to also sit upon one of the
255 THENEW YORKTIMES, 18 January 1894 at 4 coI.7, quoted in Friedman, supra note 1, at 53. 256 THE NEWYORK TIME, 26 January 1894, at 4, col. 7, qtroted in Friedman,strpra note 2, at 53. 257 TaWs nomination ofConfcderatc war veteran Horace Lurton, who had scrvcd with him on the United Statcs Court of Appeals for the Sixth Circuit from 1893 to 1900, amazingly drcw almost no critiasm. Onc Taff corcspondent cven joked that Lurton, who had been capturcd and dctainea by the Union army ,\vas "the only man ever appointcd to the Court who had sewed time in prison," qnoted in Friedman, supra note i. at 69. Simitarly, the appointment of Edward D. White as Chicf Justice cxactly one year later eliQted almost no negativc rcsponsc: indccd, Taft's predecessor, Theodorc Rooscvclt commented that "nothing could bctter augury of the future of thc country than that a Republican President should appoint a former Confederatc Chicf justice of the United States, and rcccivc the unanimous applause of his countrymen," Alexander Bickcl, Mr. Taft Rehabilitates the Cortrt, 79 Yalc Lj. 43 (1969), quoted in Friedman, sripra note 2, at 69. 258 Id- at 51. 259 Act of Mar. 3,1891,26 Stat. 827. a various circuit courts, and thus senators could at Least expect a degree of influence over
appointments korn their state. As the circuit dededined, however, the power of geography
declined with it. Senators resisted this change, as when Simon Cameron opposed a nomination
"on the ground that Pe~sylvania,with her twenw-three electoral votes, is entitled to either a
place in the Cabinet, or else upon the bench of the Supreme Couttf1260 but the flow of history
was against them.
A second factor which affeded the power of the Senate over judiaai selection was the
tremendous growth in the Court's docket. Though part of this inaease was due, as Harvard
Professor Feh Franldurter noted, to "the natural increment of the country's growth,"261 the
Court's jurïsdiction also increased dramaticdy 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 Ads, the number of cases heard by the Court tripled between
1870 and 1890.262 This trend reached its zenith with the passage of the Rernoval Act of
1875,263 which granted the federal courts original jurisdiction over al1 cases originating under
federal law, and provided for the removai of these cases from state to federal courts.26J
The combination of these factors spelied trouble for the Senate. "From 1789 domto the
Civil War," Professor Frankhirter 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 unfnendly tribunals": Now, however, "[n]ationalism was triumphant; in national
administration was sought its vindication."265 As the only eleded officia1 with a truly national
perspective, the President gained tremendous power over the seiection of Justices. Thus the
260 THENEW YORK TIMES,8 January 1874, at 1 col. 2, quoted in Friedman, supra note 2, at 51. 261 F. FRANKFURTER& J. LANDE, THEBUSINESS OF THE SUPREMECOURT60 (1927). Quoted in Friedman, SicpïO note 1, at 48. 262 Friedman, mpra note 1, at 48. See also, Habeas Corprls Act of 1867, Thirteenth Arnemirne?it, Forrrteerrth Amendment, and Reconstrctctiolt , respectively, in HU, supra note 86. 263 Act of Mar. 3, 1875,16 Stat. 470. 264 HA& supra note 86, at 726; Friedman, sztpra note 1, at 48. 265 FRANKFURTER& LANDE, supra notc 261, at 64. Qrioted in Friedman,supra note 1, at 49. 64
third factor vvhich sipded the dedjne of senatorial participation in the mnhnnation process
was the growth of presidential power. The realignment began under Benjamin Harrison, who
reinvigorated the presidential roIe in judicial selection by rehabiiitating it. Harrison took the
power of appointment vety seriously, carefuliy examining the background and ability of every
candidate he considered,266 and hs nominations were considered by supporters to have
"refled[ed] uedit on the appointment power."267
Othe~,like President William McKinley, reasserted the right of appointment through sheer
force. McKinley had little difficuity pushgJoseph McKe~a'snarne through a hostile Senate
because rnany senators were afraid '?O show unfriendliness to the President."268 The most
striking evidence of senatonal weakness came with Theodore Roosevelt's nomination of Oliver
Wendel1 HoLmes.269 Holmes was opposed by hs home state senator, George Hoar of
Massachusetts, who desaibed 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 Chairman of the Judi~aryCornmittee he was uniquely situated
to do so. By the theof the Holrnes nomination, however, Roosevelt was able to secure the
nomination without so mu& as a public word out of Senator Hoar.2n
By 1902 then, as Professor Friedman explains, "senators had begun to understand and
accept the long-developing trend that made the selection of Suprerne Court Justices a national,
rather than a local, matter."2n Accordingly, the role of individual senators in nominations
dedined, ushering in a period of presidential hegemony over Suprerne Court appointments. Not
266 See e.g., THENEWYORK TIMES,10 December 1890 at 4, col. 1; id. 25 January 1893, at 4, col. 3. 267 Qrtoted in Friedman, strpra note 1, at 65. 268 THENEWYORK T~MES, 17 Deccmber 1897, at 3 col. 4. 269 Holrnes was nominated to rcplace the IateJusticcHorace Gray on December 2,1902, HALLsupra note 1, at xliv. 270 Letter kom George Hoar to Henry Cabot Lodge, July 15,1903. Qrtoted in Fricdman,sirprtl note 1, at 54. 271 In kt, Hoar kept his opposition to the Holmes nomination silcnt because he feared the reprobation of the general public which, he told Henry Cabot Lodge, woutd find the nomination "entircly rcspectabIe." Lctter kom George Hoar to Henry Cabot Lodgc, August II, 1902, qriofd in id. at 54. 272 Friedman, supra note 1, at 54. W coincidentdy, the growth of presidential power over Supreme Court appointments mirrored developments in the nation as a whole. Theodore Roosevelt's ascension to the Oval Office marked a significant depamire from the nineteenth cenhiry mode1 of the presidency. As
Roosevelt centralized power in his office, the Executive regained control over judicial selection. SECTIONVI-SUPREME COURT CONFIRMATIONS IN THE MODERNERA
For a short time it appeared as though this power realignment wodd hold. President
William Taft's six nominations to the Court refleded so favorably upon the Executive, that
judiaal selection came to be seen as a matter in which "mere senators" should not uiterfere.273
Taft was successful because he piaced merit above politics in his decision-making process,274
and also because his experience as a federal judge gave him a degree of credibility that few
Executives brought to judiual selection. When the presidency passed into new hands, however,
the deference that senators had shown President Taft evaporated. While &dors Wce the
Court's expanding power and jurisdiction played a significant role in this transformation, the
passage of the Seventeenth Amendment in 1913 also markedly changed the balance of power
between the President and the Senate.275 The direct election of senators changed the
institutional charader of the Senate by giving the people a measure of control over members of
the upper chamber. This proved to be useful as the Senate moved to reassert power of Supreme
Court appointments. If the dedine of the circuit deprevented individual senators hom using geography as an excuse to influence judiaal selection, the Seventeenth Amendrnent provided a
new rationale for Senate involvement in the selection of Justices by making senators representatives of the people rather than the states. Since President Taft had rehabilitated the image of the Court, it was difficult for senators to use the partisan techniques theu
Reconstruction predecessors had used to control the Court. Accordùigly, senators began to devise new techniques, Like public exposure, to attempt to influence the selection of Justices.
--- 273 Qrtoted in id. at 76. 274 As one legat journal noted of a particular Taft appointment, it deserved "the cornmendation of evcry patrio tic and high-minded citizen regardless of party afiliation," The New Associate lustices, 16 VA. L. RE 702, 703 (191l), qzioted in Friedman,supra note 1, at 68. 275 US. CONST.amend, XVII, 5 1 ("The Senate of the United States shall be cornposed of hvo Senators from each State, elected by the people thereof'). While proposais providing for the direct election of senators had bcen a feature of every session of the House of Representatives since 1826, it took the influence of progressive refomers like Senators Robert LaFollette (R-Wi), George Noms, and Hiram Wdkcr (R-CA) to win passage of this measure in the Senatc, Scott Crowiey, The Effects of the Sixtemth and Seoenteenth Arnendrnenîs in Changing the Role of the States in the Federal Sysfem, BYU L. RN., 162 (1989). A. The Brandeis Case
The nomination of Louis Dembitz Brandeis to the Supreme Court in 1916 marked a significant departme from the historical pattern of confirniation proceedings.276 Mudi of the opposition to Brandeis was blatantly political: As the ardutect of President Woodrow
Wilson's anti-trust policy and a life-long Mend of the labor movement, Brandeis was a controversiai partisan figure-Zn He was also a Jew; which, though never ated 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 "stronger and more detemiined opposition" than any previous nominee.2n Rather, two other factors made the nomination unique: The role of specid interest groups, and the focus on the nominee's political philosophy.
The influence of speaal interest groups over the Senate Judiaary Comrnittee's four month investigation into the background and qualifications of Louis Brandeis was unprecedented. For the kttirne, advocacy groups Wce the American Bar Assoaation sought to exerase influence over the confirmation process.279 At the behest of Repubiican Senator Henry Cabot Lodge, seven former Presidents of the ABA, induding former President Taft and his dose friend Elihu
Root, submitted a letter to the Senate Judiàary Cornmittee labeiling Brandeis "not a fit person to be a member of the Supreme Court of the United States."zm Moorfield Storey, a signatory of the ABA letter and counsel to the New Haven Railroad, summed up the opposition's
276 Rader, supra note 35, at 803. 277 Even within the Democratic party, Brandeis was not entirely tnisted. During Wilson's first lem, the President considered appointing Brandeis Attorney General or Secretary of Commerce, but northeastern Demouats convinced Wilson that "a large number of reputable peopIe" would find the appointment objectionable, KENDIUCKA. ~EMENTS, THEPRESIDENCY OF WOODROW WILSON, 34 (1992). 278 Harris, supra note 61, at 99. 279 Friedman, supra note 1, at 81. 280 mat letter is rcprintcd in THEABA AND -AL POUCY: WHATROLE? CHE FEDERALIST FOR LAWAND PUBUCPOLKYSTUDES, Washington, D.C.) (1991) 89. According to another lctter €rom Taft to Scnator Lodge, Lodge had infonned former Taft Attorney General George Wickersham that he felt the organizcd Bar should support his opposition to the Brandcis nomination. 'The report of that," Taft wrote Lodge, "rvas the protest signcd by seven Presidents of the American Bar Association, which I think is an effective a representation of the opinion of the American Bar as it is possibic to xcure in a short Lime," reprintcd in id. at 90. viewpoint, desaibing Brandeis as "an able lawyer, very energetic, ruthless in the attainrnent of
his objeds, not scnipulous in the methods he adopts, and not to be husted."281 The nomination
also drew the critiasm of a group of leading lawyers and businessmen koom Brandeis's home-
state. Fifty-five Bostonians signed a petition, circulatecl by Harvard President A. Lawrence
Lowell, opposîng the nomination, and even retained legal couse1before the Judiaary
Comniittee.2Q Other organized groups who opposed the nominee induded the Anti-Saloon
League,2= led by Bishop James Cannon, the United Shoe MadUnery Company, 2% and the New
England Railroad-2s
In each case, the charges against Brandeis were repudiated by credible wibesses. The
opposition of President Taft and six other former ABA presidents was undermined by the
personal letter of support written by President Emeritus Charles W. Eliot of Harvard, himself a
former kesident of the group. In addition, a majority of the sixteen former ABA Presidents still
Living did not oppose Brandeis.2s The opposition of the Boston group was ridiculed by a
Boston newspaper favorable to Brandeis, which published an account of the dose
interconnections of the Bfiy-fïve signatories of the Lawrence petition, tracing most of them badc
to a half-dozen law £i.rrns.2fl The charges of intemperance levied by Bishop Cannon were also
called into question when it was revealed that they were baçed upon Brandeis's representation
of a brewers association some 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 Weekfy
reported, "[tlhe more 1study the charges against Brandeis, the more highiy 1 think of him. 1
281 Quoted in Harris, supra note 61, at 105. 282 ln. at 100, 283 Id. at 107.
286 Paul Freund, De Appointment of lustices: Some Historical Perspectines, 101 HARv. L W.2152 (2988). 287 Harris, supra note 62, at 100. 288 Brandcis, who rcprescnted the brewers bcfore the Massachusetts Iegislature, had toId a statc cornmittee "Iiquor drinking is not ci wrong; but excessive drinking is." Bishop Cannon objedcd to Brandcis as much for this a statemcnt, as bccausc hc had aded as a lobbyist on behaifof the brewcrs, id. at 107. 69 traced each to its source, and in every case it turned out to be made out of whole doth, or, when understood, to be to the credit of Brandeis.'*289
The other factor that made the Brandeis nomination unique was the dose attention paid to the norninee's political philosophy. While most of the critics who spoke out against Brandeis couched their opposition "in terms of vague questions about judiad temperament and professional ethics," as Judge RandaU Rader has noted, the majority of those who counselled rejection did so based upon predictions about how the norninee would vote on the Court.290 For exarnple, President Ta€ttold his Mend Gus Karger "1 think it is a blow at the Supreme Court. . . to have a man whose reputation is shady in respect to the ethics of his professional practice, to be put on the Bench."291 But, as a Ietter to another hiend revealed, Taft seemed more concerned with how Brandeis would decide actual cases: "As one upon the Bench . . . [Brandeis] may seem to be more conservative than expected, but wherever his vote will count to break down the conservative language of the Constitution, it will be cast . . . ."292
In the end, the hil Senate refused to broaden its inquiry to uidude a substantive review of
Brandeis's political philosophy, instead passing judgement upon the excellent qiialifications of the nominee. 293 Mer four months of investigations 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 Dernouatic convention just a month away, the confirmation was a great vidory for President Wilson. Had Brandeis lost, the appointment would have become a crucial issue in the eledion later that year.295 Though the Brandeis nomination did not hurt
289 It should be noted that Hapgood investigated the charges at President Wilson's behest, id. at 101. 290 Rader, supra note 35, at 804. 291 William H. Taft to Gus J. Karger, March 20,1916. Reprinted in THEASA IN LAWAND PUBUCPOUCY: W HAT ROLÉ!, supra note 280, at 91. 292 William H. Taft to Truman Palmer, January 31,1916, partially reprinted in id. at 93. 293 Roscoc Pound of Harvard University tcstificd that "so far as shcer legal ability is concerncd, [Brandeis] will rank wïth the bcst who have sat upon the bench of thc Supreme Court," qltoted in Rader, supra note 35, at 803. 294 The vote followed strict party lincs. Brandeis reccived 47 ycas against 22 nays. 295 According to historian Joseph Harris, "[hlad Brandeis been rejected . - . [itj probably would have changed the rcsult of the clcction," Hams, supra note 61, at 99. 70
Wilson%reeledion bid, it did not augur well for the hihire ai the confirmation process Ar a
prescient artide in The NmRepublic reprted shortly after the votes were tallied:
The harm done cannot well be undone. There is no use shirking the facts. The Court has been dragged into politics, and if at some Future time an appointment is made which is as conspicuously conservative as that as that of Mr. Brandeis was conspicuously liberal, it will not be surprising if the liberais, tlirowing off the self-restraint they have shown this time, shouid foUow the wretched example set by Mr. Brandeis's conservative enemies,2%
In the end, several of the methods used to attadc Brandeis proved to be trend-setting. First,
though Brandeis hirnself did not appear before the Judiciary Cornrnittee, the faa that his
hearings were opened to the public set a new precedent for openness which would eventudly
revolutionize the confirmation process. Second, the detailed focus on Brandeis's political
philosophy moved the Committee uito uncharted temtory.
B. The Callittg of Nominees before the Senate Judiciary Cornmittee
If in 1916 the Brandeis hearings proved to be the exception, within a short period of time
the level of scmtiny that marked his confirmation became the rule. Two developments, each
dependent on the other, made this all but inevitable. The fint was a change to standing Senate
deswhich made all confVmation proceedings a matter of public record. Prior to 1929, it was
the accepted practice of the Senate to consider ail Supreme Court nominations in dosed
executive session.2" Objections were frequently raised by senators, but excepting those rare
occasions when two-thirds of the senators voted to open speafic hearings, the proceedings
remained d0sed.2~8Due to repeated leaks to the press, however, the practice of allowing closed
votes was reconsidered during the 71st Congress. In response to speafic disdosures about
nominations, the Senate Ruies Committee proposed that open executive sessions on severai
nominations be authorized by a majority vote.29 Outrage over the disdosures was so
296 17ze Close of the Brandeis Case, THENEW U EPUBUC, June 10,1916, at p. 134, reprinted in THEABA R\I LAWAMI SOCIAL POUCY: WHATROLE?, supra note 280, at 96. 297 Freund, supra note 286, at 1157. 298 These votes took pIace in closed sessions. The bvo best examples of cases wherc the Senate voted to open hearings of Supreme Court nominees were Brandeis in 1916 and Harlan Stone in 1925. a 299 Freund, supra note 286, at 1157. /l pronounced, however, that the bill was rejeded as too mild by several senators. Many agreed with progressive Senator George Noms of Nebraska, who argued that "pubiic business should be h-ansacted in public."3~Eventuaily the Senate settled upon the change suggested by Senator
Joseph Robinson of Arkansas, to make every session open unless dosed by a majority vote-301
A second factor which increased the scrutiny given to Supreme Court norninees was the developing tradition of having nominees testify before the Senate JudiciaryCommittee. This pradice traced its roots back to the 1925 coi~rmationof Attorney General Harlan F. Stone.
Prior to this, interaction between the Committee and the nominee had consisted of occasional written exchanges, but no nomlliee appeared personally before the Committee.302 Stone became the ktnominee to testify on January 28,1925, after charges of ethical violations in the Justice
Department's investigation of Senator Burton K. Wheeler caused the full Senate to vote to recornmit his nomination to the JudiaaryCommittee.303 Recognizing the Cornmittee's interest in the Wheeler affair, Stone opened his testimony with a statement about why he had deaded to prosecute the case. Though the statement elicited over £ive 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 confirmed by the a 71-6 vote in the hl1 Senate. Even Senators Borah and Walsh, Stone's prinapal opponents
300 THENEW YORK TIMEÇ,24 January 1929, at 5, col. 1, qztoted in Freund, supra note 286, at II!%. 301 The change was embodicd in what became Senate rule 31(2), id. at 1158. 302 In 1874, Attorney General George Williams submittcd writtcn materials in support of his nomination, but withdrcw his nomination after hc was dcnicd an opportunity to testify. Three ycars Iatcr, Rutherford B. Haycs's nomincc John Marshall Harlan ~vrotchis Scnatc sponsor to indicatc his willingncss to appcar before the Cornmittcc, but his tcstimony was not requircd, Frank, The Appointment of Stiprerne Court lrrstices: Prestige, Principles, and Politics, 1941 Wrsc L. REV. 172, 200-4. 303 Senator Whecler had becn indictcd by a grand jury in April 1924, for practicing Iaw before a governmentat agency with the intcnt to commit fkaud. Though Whcelcr had been cxoncrated by an investigation led by Senator William Borah of Idaho, Attorney General Stone ordercd a new grand jury investigation to bcgin in February 1925. In response, WheeIef s counscl, Senator Thomas Walsh of Montana, orchestratcd a successhl votc to scnd Stone's nomination back to the Judiciary Committce. The bipartisan composition of this votc may have provided Walsh with somc covcr, but Walsh's rolc as Whcclcf s Iegat counsel called his motivations into question, see James ïhorpc, The Appearance of Siipreme Coiirf Nominees before the Senate jridiciary Committee, 18 JOURNAL OF PUBLIC LAW 371-373 (1969); Wi Il iam Ross, The Questioning of Supreme Court Norninees At Senate Confirmation Hearings: Proposals For Accornrnodating rire Needs Of The Senate And Arneliorating The Feurs Of The Nonrinees, 62 TmL. REV. 216-117 (1987). IL only a few weeks before, came out in support of his nomination, as did Chief Justice TaftW
Shodced at the ease with which he had managed to curry the favor of the Committee, Stone later commented: "1 did not foresee that they would deliver themselves into my hands so completely."3E
Preàsely because of Stone's success, his testimony did not establish a precedent for persona1 appearances by a nominee. Several years later, when hced with the opposition of both organized labor and the NAAU', North Carolina Appeds Court Judge JohnJ. Parker volunteered to testify before the Committee but was refusedm Apparently the memory of the
Stone nomination was stiU kesh in the minds of Senators Borah and Noms, both of whom agreed that the subrnission of written materials would be sufncient. Unfortunately for Judge
Parker, however, a majority of senators were not sufficiently convinced of his qualifications, and he was rejected by a vote of 41-39, the closest margin of defeat ever for a Çupreme Court nominee.
It was not until the nomination of Felix Fraddurter that the emerging practice of calling
Supreme COU^ nominees to appear before the Judiciary Committee received çerious attention.307
Anticipahg the hostility that his nomination rnight create, Professor Frankfurter was advised by presidential assistant Steve Early to plan on testifyhg, and a few days before the hearings he received a fomal invitation to do so from Senator Neely of West VirginiaYs Frankfurter refused Senator Neely's invitation, instead putang his counsel Dean Acheson at the disposal of the Committee. kheson attended the bst day of testimony, mostly by witnesses hostile to
Frankhuter, but the next day Frankfurter appeared on his own behaif and read the following
304 Ta€twrote a letter to Stone indicating how pleascd he was with Stone's performance, espeaally in light of thc maievolent use to which Senators Walsh and Wheeler had put the judicïary Cornmittee,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 judiaary Cornmittee of the United States desires my presencc and requests it, 1 shaI1, of course, be glad to corne." The Cornmittee deciined this offer, Thorpe, supra note 303, a t 375. 307 ld. at 375-8. 308 Senator Neely headed the subcornrnittee charged with investigating the Frankfurter nomination. 1 am very glad to accede to this cornmittee's desire to have me appear before it. 1, of course, do not wish to test@ in support of my own nomination. Except in one instance, involving a charge agains t a nominee conceming his off cial act as Attorney General, the entire history of this cornmittee and the Court does not disdose that a nominee to the Supreme Court has appeared and testified before the judiciary Cornmittee. While 1 believe that a nominee's record should be thoroughly scrutinized by this commitkee, I 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 hirnself. I should think it improper for a nomince no less than for a member of the Supreme Court to express his views on controversial political issues affecting the Court. My attitude and outlook on relevant matters have been thorougidy expressed over a period of years and are easily accessible. I should 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 to supplement my past record by present dedarations. That is al1 I have to say.309
Following this statement, questions arising korn the testimony of earlier witnesses, most of
which related to the nomirtee's purported le&-wingbias, were put to Frankhuzer. The climax of
this portion of the hearings came when Senator Pat McCarrari asked if FrankfÜrter "believed in
the doctrines of Karl Marx." Frankfurter's response earned hùn a hominute ovation:
Senator, 1 do not believe that you have ever taken an oath to support the Constitution of the United States with less reservations than 1 have or would have now, nor do I believe that you are more attached to the theories and practices of Americanism than I am. i rest my answer on that staternent.310
At the end of the hearing, Chairman Neely stated that since severai 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 that he was not and had never been a Communist, whereupon Senator McCarran asked whether he meant that he had never been enroued as a member. Frankhirter replied forcefdly: "1 mean much more than that. 1 mean that 1have never been enrolled, that I have never been qualified to be emolled, because that does not represent my view of life, nor my view of governrnent-"311
309 Nomiitation of Felix Frankfurter, Hearings Before a Subcommiffee of the Senate Cornmittee on the Iudicia y, 76 th Cong., 1st Sess. 107-8 (1939) [hereinafter Frankjkrter Hearingsl. See also Freund, supra note 286, at 1159; Thorpe, supra note 303, at 377. 310 Qrrofed in Harris, supra note 61, at 310. 31 1 Frankjrrter Hearings, supra no te 309, at 127-8. Professor Fradcfuter made the most of his 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 garne. "In kt,1 took charge," he rernembered, "[ilt was the only thing to
d0."312 Franldllrter did weLl because members of the public and press who attended his
hearings rallieci behind him. Though he managed to use the aowd to his advantage, however,
he did hdthe open hearings disturbing: "1 thought Lhat it would just be a little room where
we4dsit around. 1 found this was Madison Square Garden."313
Frankfurter was not done. Two years earlier, during the Hugo Black nomination, Senator
Tom Comally of Texas had opposed a motion to hold public hearings. "Hearings are for the
information of the Committee," Comally told his colleagues, "not for the purpose of public
amusement; not to have a legislative rodeo so that everybody may corne in and have a good
he."34 Senator Comally's words apparently feu on deaf ears, for after Frankfurter, Supreme
Court nominees appeared much more frequently.315
With the nomination of Sherman Minton during President Hany Truman's second term,
the question of having a Supreme Court nominee appear before the Judiaary Committee was
revisited. A New Deal loyalist, Minton was appointed to the Seventh Circuit Court of
Appeals by President Franklin Roosevelt &er losing his bid for another term as US. Senator
£rom Indiana in 1940. The combination of Minton's pnor service in the Senate, dong with the endorsement of the state's two sitting Republican senators, should have been enough to recommend his confïrrnation, but Minton was opposed by the powerful senator £rom Michigan,
312 FEUX FRANKFURTERREMINI,-, 285(H. PhiIIips cd. 2960), qrroted in Freund,supra note 286 at 1158. 313 Freund, srrpra note 286, at 1160. 314 81 Cong. Rcc. 8964 (1937) (statement of Senator Connally), qrtoted in Harris, supra note 61, at 308; Frcsnd, srtpra note 286, at 1160. 315 Both William Douglas and Frank Murphy, nominaicd in 1939 and 1940 respectivcly, appearcd voluntarily. Attorney General Robert Jackson's appearance in 1941 was, like that of Harlan Stone, compcllcd by mcmbcrs of the Senate. Jackson's tcstimony was compelled by Senator Millard Tydings of Maryland, who qucstioned Jackson exhaustively about why the Justice Department had failed to prosccutc two coiumnists for 1ibellingTydings. Jackson's rcsponse apparently satisfied everyone but Tydings, who Wstered the only negative vote against him, see Thorpe, srtpra note 303, at 378 for the entire story. a Homer Ferguson. Ferguson used his influence to introduce a motion before the judiaary
Committee to compel the testirnony of Judge Minton. The motion passed 5-4, but Minton failed
to appear on the prescnbed day, instead sending the following note:
of course desire to cooperate fully with the committee at ail tunes but I feel that personal participation by the nominee in committee proceedings relating to his nomination presents a serious question of propriety, particularly when I rnight be required to express my views on highly controversial and litigious issues affeding the Court. . . . My record as a Senator is a public record and open to çcrutiny by the Committee. It, 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 Majority Whip of the Senate, I was a strong partisan and supported the administration. 1 do not deny this. ïhe record was made, and 1 stand upon it. 1 have made rnistakes . . . When I was a young man playing baseball and football, I strongly supported my team. 1 was then a partisan. But later when 1 rehreed tearns I had no team. 1 had no side. The same is hue when 1 left the political arena and assumed the bench. Cases must be deaded 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 caU 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 his state's senators muted the possibility of
serious partisan opposition, and two days after receiving his note, the Judiciary Cornmittee,
bolstered by the remof three Democratic members, voted 9-3 against compehg his
testimony.317 To underscore the point, the Committee voted to recommend confirmation by a 9-
2 margin. When the Committee's recommendation reached the Senate floor the following day,
however, two prominent Republicans warned against the precedent being set. Çenator Ferguson
of Michigan explained the importance of calling Minton in constitutional tems:
[Rlesearch has not indicated whether or not there are precedents for the refusal of a nominee to the Çupreme Court to appear before a Senate committee, and particularly the juditiary Committee. Any such inadent if it has occurred in the past apparently is not a matter of record. judge Minton's letter.. . adopts a iine of reasoning which closely parallels that çtatement of Justice Frankfurter's . . . . There is suggested a development which I think is a most dangerous threat to the processes of representative governmentW
Ferguson was apparently motivated by political caldations, as he revealed later in his speech:
316 Cong. Rec, 13803 (1949), qiroted in id. at 381. 317 Id. at 382. 318 Cong. Rec. 13803 (1949), repn'nted in id. 382. It has been made a part of Judicial 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 Democratic party. This is an imbalance which undennines fuii hith in the judiciary.319
Though Ferguson's credibility was undemùned by the dearly political nature of his attack,
the words of his Republican coileague Wayne Morse of Oregon seemed to be motivated by a
genuine concem for the integrity of the proces. "I am moving to readmit this nomination .. . on
entirely different grounds," Morse said:
The tendency in the Senaie to build up precedent by precedent of reporting nominations to the floor of the Senate without inquiry on the part of the Judiaary Committee in the sense of caïling the nominee hirnself before the cornmittee. . . is a precedent and a trend 1 think should be stopped, because 1 do not think it is consistent with the true spirit of the advice-and-consent clause of the Constitution.320
If Morse dahed to divine new insights into the Constitution, or into the intentions of the
Framers, he fded to point out what they were. And, as acting-Chairman of the Judiciary
Committee Harvey Kilgore pointed out, the Committee's decision not to compel JudgeMïntonfs testimony dearly validated Minton's position:
After hearing the arguments, the Committee . . . passed on the protest which was quoted by Judge h4inton in his letter, the protest of. . . Frankfurter against the idea trying to cal1 a nominee to the Supreme Court before the Committee and commit himself on various matters, recant his political doctrines, and al1 that sort of thing. That was the reason for my vote, and the vote of every other member of the Coaunittee on the motion to reconsider [calling Minton], although 1 had before that tirne also voted against requesting . . . Minton's appearance because we do not follow such a practice in that Cornmittee and never have since I have been a rnember of it-321
In the end, the fui1 Senate voted against recommitting the nomination by a 45-21 vote, and
Minton was cohed,48-16.322
Judge Minton's stmggle proved to be the last stand for opponents of personal appearances. Though the next nomùiee to the Court, former California Governor Earl Warren was not calied to appear, the Committee requested the appearance of John Marshall Harlan
319 Cong. Rec. 13796-97 (1949). Ferguson daimed that 184 of 192 RooseveIt's appointments to the federal bench, or 96 percent, had corne from the ranks of the Democratic party, reprinted in id. at 382. 320 Cong. Rec. at 13797 (f949), reprinted in id. at 383. 321 Cong. Rec. 13799 (1949), reprinted in id. 322 Freund, supra note 286, at 1161. and every subsequent nominee.323 In the less than twenty years between the Parker and Minton
nominations, the momenturn of history had shifted.324 As kstorian Paul Freund commented,
"Parker desired to teseand was refused; Minton was asked to testify and only reluctantly
was his refusal accepted."325
C Questions Posed To Supreme Court Nominees
As the testimony of individual nominees became an integrai part of the confirmation
process, the scope and Length of the questions posed to prospective Justices dianged. In 1925,
senators had, by and large, lirnited their inquiry into Harlan Stone's conduct to questions about
the Wheeler uivestigation.326 Similarly, years later Professor Frankfurter responded to witnesses
who claimed he was a Comunist, but would not respond to questions of substantive law.327
By the 1950s externat pressures were pushing the Court into the unchartered waters of judicial
activism. Naturdly, as the Court began to have an increasing effect on public policy, control
over its membership became increasingly important to the Senate. Unlike its Reconstmiiction
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 RoosevelVs court-packhg scherne,328 and the growth of Executive power
ushered in by Theodore Roosevelt made a repeat of the Reconstruction pattern unlikely. The
Senate was thus forced to End new and innovative ways to exert control over appointrnents.
To this end, the questioning of nominees proved to be a very useful tool.
The first norninee to field questions about a specific case was John Marshall Harlan in
323 Ross, srrpra note 303, at 119. According to Professor Ronald Rotunda, "[tloday .. . it would be unhcard of for a Supreme Court nominee to refuse to be questioned in person by the Judiciary Cornmittee," R. Rotunda, The Confinnation Process for Szipreme Coirrt lustices in the hdodern Era, 37 EMORY LJ.562 (1988). 324 Freund, supra note 286, at 1162.
326 See supra notes 302 to 305 and accompanying tcxt. 327 See srrpra notes 307 to 313 and accompanying text. 328 For a discussion of President Franklin Roosevelt's €ailed scheme to pack the Court, see Michael Nelson, Court Packing as a Failzrre of Presidmtial Leadership, reprinted in W,srrpra note 1, at 226. 1955. Republican senators interrogated Harian about his views on the Steel Seizure Case.329 In
the dissenting opinion in that case, Chief Justice Fred Vinson had argued that President Truman
could legally seize control of the nation's steel miiIs under the UN. CharterW Several senators
viewed this opinion as an assadt on national sovereignty, and questioned Harlan to see that his
views comported wïth their own.331 Harlan refused to discuss the case, however, shting "1
don't think il would be proper for me tc comment on that for reasons that you can obviously
perceive."~2 These reasons were not "obvious" to the senators, nor were they apparently
obvious to Harlan, who went on to give a rambling explanation of his views.333 In the end no
senator proved willing to force the issue, and Harlan eventually mollified his aïtics by
expressing his beiief in the supremacy of the Constitution and defending the notion of Amencan sovereignty."
Compared to William Breman, Harian was beated with kid gloves. Appointed by
President Dwight D. Eisenhower on September 29,1956, Justice Breman left the New Jersey
Suprerne Court to accept an interim place on the Supreme Court. When the Judiciary Cornmittee
began its investigation into his nomination in early 1957, Brennan was called to appear.
Though he appeared voluntarily, Brennan was treated like a hostile witness. In addition to faàng the questions of the Judiciary Cornmittee, Breman also had to field the questions of
329 Yotrngstown Sheet & Tube Co. z>. Sawyer, 343 U.S. 579 (1952). 330 Vinson was joined by justices Stanley F. Reed and Sherman Minton, see DAVIDMCCULLUUCH, 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 Cornmittee on the judiciary, Unitcri States Senate, on the Nomination of folin Marshall Harlan, of Nau York, to be an Associate \~lrstice of the S~rpremeCourt of the United States, 84th Cong., 1st Ses. 167 (1955)[heceinafter Harlan Hearingsl, quoted in Ross, supra note 303, at 126. 332 Ross, supra note 303, at 126. 333 Harlan offered the following cxplanation of his views: "I don? think that the proprieties of my cornmenting upon deasions of the Supreme Court, for which 1 have becn nominated, as to questions that may arise in the future that 1 rnay have to sit on if my nomination is confirmed-it is something that is a matter of propriety that 1 can be askcd to engage in, and 1 hope that you will respcct that," id- at 126-7. O 334 Thorpe, strpra notc 303, at 384. 2
Senator @seph R McCarthy of Wisconsin~McCarthy clenrly had an axe to I;""d agakt
Bre~an,who had referred to Congressiond investigations of Communists as "Salem witch
trials," "Inquisitions," and "barbarism," but Breman refused to answer his questions about
whether Communism was a political party or an international conspuacy.336 With prompting
from Senator Joseph Mahoney of Wyoming, Brennan did concede that anti-Cornmunist probes
were a "vital function of Congress."~7 Evenhiaily, Breman won the unanimous recommendation of the Judiciary Committee. When the full Senate voted on March 20, only
Senator McCarthy opposed confhmation.~
Solidor General Thurgood Marshall, the ktblack man appointed to the Supreme Court, faced several days of hostile questionïng £rom members of the Committee during his 1967 confirmation hearings. Senator John McClellan questioned Marshall extensively on Miranda v.
Arkona,a9 insisting that the Senate needed "to have some idea, at least a glimpse, some impression as to the trend of the thmking and the philosophy" of the nominee before it passed judgement-340 Marshall refused to answer Senator Mcaellan, though, daiming that the "many cases pending in the Supreme Court . . . on variations of the so-called Miranda de" preduded hirn £rom ançwering such questions.~lMarshall's refusai to discuss issues of substance was so complete that a hshated Senator Sam Ervin told him "if you are not going to answer a question about anything which might poçsibly corne before the Supreme Court some thein the future, I cannot ask you a single question about anythng that is relevant to this inquiry."3Q
335 Despite king EorrnaIly censured by the Senatc for his overzcalous prosecution of alleged Communists in 1954, the judiaary Cornmittee votcd unanimously tc? allow Senator McCarthy to cross-examine justice Brennan, id. at 385. 336 Id. 337 THENEW YORK T~MES, 27 February 1957, at 15, col. 4, quoted in id. 338 THENEW YORKTIMES, 20 March 1957, at 38, col. 4. 339 384 US. 436 (1966). 340 Hearings Before the Committee on the lridiciay, United States Senate, on the Nomination of Tlrirrgood Marshall, of New York, fo be an Associate \rrstice of the Srrpreme Corrrt of the Unitea States, 90th Cong., 1st Sess. 8-9 (1967) [hereinafter Marshall HearingsJ. 341 Id. at 9. 342 Id. 80
Senator Emin suggested that if Marshall had no opinions to share about the Constitution, he
should not be confinned. "1 think it would be wrong for me to give [an]opinion at this the,"
Marshall replied. ,%en the case comes before the Court, that will be the time."x3
As the questions asked by Senator McCleUan soon revealed, the joustùig between Marshall
and his inquisitors was not really about qualifications at ail, but instead about the Senate's role
in the confirmation process. Marshall had the '%adcground," "training," and the "ability" to be
a Supreme Court Justice, McClellan conceded,
But 1 do not care who it is who comes before this cornmittee hereafter for the Supreme Court; 1am going to try to find out sornething about their phiiosophy and not take the chances 1 have taken in the past. 1 mean that. This is a fundamental principle and an issue here that 1 think 1 have a grave duty to perform.341
McClellan's views were not shared by all in the Senate. Senator Edward Kennedy, for one, took
issue with McClellan:
1 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 coinade with our own. We are not seeking a norninee for the Supreme 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 jo5.345
Apparently, a majority in the Senate agreed with Senator Ke~edy,because Marshall won
confïrmation by a comfortable 69-11 maredespite his refusai to answer many questions.346
The following year, 1968, saw perhaps the most bizarre confurnation hearing in Supreme
Court history when Justice Abe Fortas appeared before the Cornmittee. Confirmeci several
years earlier as an Associate Justice, Fortas was called to answer questions after President
Johnson nominated him to replace the retiring Earl Warren as Chief Justice. Though he voiced
strong opinions that the questioning of a siiting Justice would violate the constitutional dochine
345 Quoted in Fricdman,supra note 1, at 90. 346 Marshall was rccomrnended by an 11-5 vote of the Judiciary Cornmittee. Al1 five negative votes wcrc cast by a southcrn senators, Thorpe, supra note 303, at 388. 81
of sepluation of powers, Fortas nonethelers appeared before the Cornmittee in July, 1968."
Reaction to Fortas's concems varied: On the one hand, Senator PhiLip Hart cded the
appearance of a sitting Justice "a practice which 1 think is unfortunate," and urged his
colleagues to "exercise legislative restraint, and . . . . not to cross-examine."m On the other
hand, a majority agreed with Albert Gore of Tennessee that the appearance of the nominee was
a precedent that they welcomed. Even this group, however, agreed with Senator Hart that
"there are çevere Limitations upon the kind of questioning that a legislative cornmittee may wish
or properly submit to a sitting justice of the Supreme CoUrt"419
When it came to the Fortas hearings, however, the "legislative reshaint" that Senator Hart
had counselied was nowhere in evidence. Over several days of questioning, Justice Fortas was
asked to comment on more than a dozen cases decided both before and while he was on the
Courtso Due to concems that his spontaneous testimony rnight lead to imprudent and unwise
remarks, Fortas made it dear at the outset that he would not "discuss in ths forum opinions of
the Court of which I am a member."xl But under the intense scrutiny of the Cornmittee, Fortas seemed to trip over himself. Though he refused to respond to Senator Strom Thumiond's question about the 1964 Escobedo v. Illinois352 decision, explaining: "1 was not on the Court at that üme,"n3 Fortas did volunteer an explanation as to wwhy he had recently joined the majority
347 Hearings Before the Committee on the [ttdiciay, United States Senate, on the Nomination of Abe Fortas, of Tennessee, to be Chief Itrstice of the United States and Humer Thornberry, of Texas, to be an Associate justice of tlre Suprme Court of tlze United States, 90th Cong. ,2nd Sess. 122,182,214-15 (1%8) fhereinafter Hearings on Fortas and TIIonlberryj. No sitting Justice had cver appeared before the Committee as a nomince, and only one incumbcnt Justice, Charles Evans Hughes, who tcstificd against Presidcnt RooseveIt's court packing plan in 1937, had ever appcarcd before a Senatc comrnittee, Ross, supra note 303, at 129. 348 Hearing on Fortas and Tl~onzberry,srrpra note 347, at 101-3.
350 For a listing of thesc cases, see Ross, supra note 303, at 130. 351 Hearings on Fortas and Thornbery, srrpra notc 347, at 214. 352 378 US. 478 (1964). 353 Hearings on Fortns and 7ïromberry, supra note 347, at 192 Thumond commentcd upon the inconsistcncy of thc Fortas position, saying, "1 thought if you did not want to commcnt on the dccisions you did participate in, you might give us the bencfit of your opinion for the common good, for the public good of the peoplc of this country, on a detision in which you did not participate," id. The Fortas episode convinàngly demonstrated the pitfalls assoaated with the Senate's
expanding role in the judicial selection process. As the Committee hearings began to look less
Like a fact-hhg mission and more like an inquisition, nominees like Fortas were caught in a
Catch 22: If they engaged the Committee, in a discussion of speafic cases, as they were baited
to do, they underrnïned the constitutional doctrine of the separation of powers by calling their
judiaal independence into question.= However, if they repeatedly refused to answer the
questions posed to hem, they ran the risk of appearing to have somethuig to hide. Senator
Thurmond attempted to use the latter tnith to his advantage during the Fortas hearings: In
response to Justice Fortas's repeated rehsal to answer his 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 Med today, to answer questions of vital importance to hem, and
they are going to get an impression, and maybe rightly so, that you are using this as a screen or
an excuse not to get into these malters."= Another reiated problem 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, "Fortas voluntarily discussed cases about which he had not been
asked, espeaally when it suited his interests to do ~0.~~357
After Fortas, nominees found it hcreasingly difficult to resist the pull to answer the
354 387 US. 294 (1967). Fortas was apparentiy attempting to convince the Comrnittee that the Warren Court had actually been tougher on criminals than its critics charged. The Hayden decision ovemled the 1921 Gariled o. United States decision, 255 U.S. 298, which prohibited police from seizing evidentiary material under the Fourth Amendment when they made an authorized search. 355 Fortas was amtcly aware of this probIem, tclling thc Committee that hc would "not be an instrument by which the separation of powers spccified in Our constitution is callcd into question." Hearings on fortas and Tlroniberry, supra note 347, at 224. Even so, he did discuss at Ieast one case upon which he had sat with Scnator Thurmond, see previous note and ciccompanying text. 356 Hearings on Fortas and 77rornberry, supra note 347 at 283. The ncxt day, The Nciv York Times validated Thurmond's warning, noting that the day's events "reminded many observcrs in the stately Senate Caucus Room of the antisubversive hearings of a dccade ago whcn witnesscs wcre forced to plead the Fifth Amendment against sclf- incrimination again and again in rcsponse to questions about their associations," THENw YORK TIMES, July 19,1968 at 1, col. 2, qiioted in Thorpe, supra note 303, at 393. 357 Ross, supra note 303, at 231. 83 a Cornmitteersquestions. iYhile the next four nominees-Warren Burger, Clerneni Haynesrarth, Harold CarsweU and Harry Blackmun-were not mtuiized based on their judiaal decisions
and opinions,ss al1 subsequent nominees have been. Lewis Powell, the former ABA president
tapped by President Richard Nixon to replace Justice Hugo Black, hced a particularly
indecorous line of questiorting. As a member of the PresidenYs Commission on Law
Enforcement and the Administration of Justice, Powell had aiticized the Supreme Court,
arguing that the Miranda and Escobedo decisions had strengthened the rights of the accused at
the expense of law enforcernent officials.~gNow in the witness chair, Powell was asked by
Senator Charles Mathias whether he believed the Court should vote to overde the two
decisions.360 Powell dedined to answer Senator Mathias's question direcüy,36i 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 Franldurter to comment on a
particular case. Now, however, senators seemed cornfortable to ask not only "What do you
think?", but "How wiu you vote?"
Like previous nominees, William Rehnquist also refused to discuss cases likely to corne
before the Court. In answer to Senator Birch Bayh's question about the Supreme CourYs
deàsion in Griswold v. Connecficuf,362Rehnquist stated: "[tJo Say whether I agree with the dochine of a particuiar case or not . . . would be entirely inappropriate for a nominee."x3
358 Though ail four nominees had pnor judiaai experience, mitigating factors caused the Committee to focus on other issues during their hearings. Since neither Burger nor Blackmun had issued particuiarly controversial opinions, both easily won confirmation by respective votes of 74-3 and 94-0. On the other hand, both Haynesworth and Carswell were considcred to be nornineeç of such low calibre that the Committee focusseci on cornpetence, integrity and judiaûl fitness evcntually rejecting both men easily, see id. at 132-2. 359 Hearings Before the Senate Cornmittee on the \udiciary, United States Smate, on the Nominatiotrs of William Hitbbs Rehriqitist, of Arizona, and Lewis F. Powell, /r., of Virghia, to be Associate Iwtices of the Suprerne Court of tire United States, 92nd Cong., 1st Scss. 231 (1971) [hercinaftcr Hearings on Reilnquist and Pmell]. 360 M. 361 Powell did concede that he thought thc minority opinions on the hvo cases had been stronger, but he stoppcd well short of pledging to ovcrturn the deasions, id. 362 381 US. 479 (1965). In response to Senritor Bayh's question, Rehnquist commcnted: "[tlo Say whethcr 1 agree with the doctrine of that particular case or not . . . would be entirely inappropriate for a nominec," Hearings on .. - Rehnquist and Powell, supra note 359, at 164. 363 M. at 164. $4
Under pressure from other senators, Rehnquist did discuss his views on Brown o. Board of
Eciucation,364 but only in the most general way. What is most interesting about the Rehnquist hearings is the breakdown of questions faced by the nominee. Of the more than 400 questions put to Rehnquist, at least ninety percent related to his constitutional philosophy-w>s While
Rehnquist was careful not to compromise his independence with his answers, the volume of questions relating to the nominee's substantive views also signalled a real change in the Senate's evaiuation of Supreme Court candidates.
During the hearings on Sandra Day O'Connor and Antonin Scalia, this trend continueci.
Judge O'Connor explained at the outset of her confirmation hearings that she would refuse to answer any questions that comprornised her judicial independence:
1 do not believe that as a nominee 1 can teU you how 1 might vote on a particular issue which may come before the Court, or endocse or criticize spetific Supreme Court deasiow which may weii come before the Court again. To do so would mean that 1 have prejudged the matter. . . -366
Despite hsclarification, however, Judge O'Connor was asked to comment on several recent cases, induding Roe o. Wade.367 Spedically, 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 judiQal review . . . ."38 O'Connor replied:
For me to join that aitiasm would perhaps be perceived as an improper exercise of my hinction right now, as a nominee to the Court, for the simple reason that 1 suspect we have not seen the last of that doctrine, or holding, or case, and that indeed we are very likely to have the matter corne back before the Court in one form or another.369
- --- 364 349 US. 294 (1954). 365 This data is based on a ernpirical study that ciassificd questions put to rccent Supreme Court norninees by the JudiaaryCommittee into three categories: charader, competency, and constitutionaIism,see Guliuzza et. al., supra note 6, at 428. 366 Hearings Before the Cornmittee an the jrtdiciary, United States Senate, on the Nomination of Sandra Day O'Connor 10 be an Associate justice of the Supreme Court of the United States, 97th Cong., 1st Sess. 57-58 (1981) [hereinafter O'Connor Hearings 1. 367 410 US. 113 (1973). 368 O'Connor Hearings, supra note 366, a t 107. 369 Id. 85
O'Connor did engage the senators in a discussion of rases rhe felt had (lieen rather reU
detided and are not likely to be corning badc before the Court direcüy in any dosely related
form on the rnerits."370 She remained steadfast, however, in her refusal to discuss anything that
might compromise her independence.
Judge Scalia's confirmation fdowed dong similar hes. In a discussion of the proper
scope of the Senate's role in the confirmation process, Scalia staked out a position similar to
previous nominees, stating "the only safe position that 1 can take in consaence is simply not to
Say that there is any particular case regarding which I would absolutely vote ag&st a litigant
who urges a position that is contrary to it."37i Judge Scalia refused to discuss certain
controversial cases, including Miranda v. Anzona,3n with the Comrnittee, and also rehsed to
discuss various issues like the imposition of limik on post-hiai appeais in death penalty
cases.373 Despite his refusais, however, Scalia was repeatedly asked by certain senators to take
positions on issues destined to corne before the Court. At one point, Senator Edward Kennedy
asked Judge Scalia, "if you [are] confïrmed, do you expect to overrule Roe v. Wade?" Scalia
responded, " I do not think it would be proper for me to answer that question."371 Unlike previous nominees including Thurgood Marshall, Sandra Day O'Connor, and William
Rehnquist, however, Scalia refused to comment on even on the most fimdarnental Supreme
Court cases. In response to a question posed by Senator Strom Thurmond, Scaiia told the senator "1 do not think 1 should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison."3E But whde he was unwilling to give the Cornmittee even a glimpse into his substantive political views, Judge Scaüa was quite
371 Hearings Before the Cornmittee on the jrtdiciary, United States Senate, on the Nomilration of judge .lntotrin Scalia, to be an Associate justice of the S~lprerneCourt of the United States, 99th Cong., 1st. Sess. 86-87(1986) [hereinafter Scalia Heari~igsj. 372 Id. at 34. 86
hnhcorning about his judicîd philosophy 1think 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 overnile, Judge Scalia elaborated on his philosophy of the role of a judge:
"1 assure you, I have no agenda. 1am not going to the Court with a iist of Wgsthat I want to
do. My only agenda is to be a good judge. I decide the cases brought before me. And 1try to
decide them according to the law as best as I can figure it out. . . ."3n D. The Bork Hearings
Appeals Court Judge Robert Bork took a mu& different approach.378 Over five days of
exhaustive hearings which induded nearly thùty hours of testimony,379 JudgeBork patiently listened to, and answered, over four hundred questions relating to his substantive views on the
Constitution.m Judge Bork discussed his opinions on a wide-range of issues destined to corne before the Court again, induding the right to privacy,~lthe First Amendment,= and due process.383 He also spoke quite specifically about several Supreme Court cases, issuing statements like "Griswold u. Connecticut does not sustain its burden," and "Roe u. 'dade contains almost no legal reasoning."w Because he deviated kom the response pattern adopted by previous nominees, many observers attempted to blame Judge BorKs rejedion on himself. Some commentators even argued that Judge Bork harmed the integris. of the confirmation process by
376 Id at 48. 377 Id. at 38. 378 Ross, supra note 303, at 139 ("Bork radically departed hmthe traditionai reticencc of Suprcme Court nominees by kecly answering most questions, induding numcmus questions concemirtg past decisions of the Suprcrne Court"). 379 Bork Heurings, supra note 4, at 6188 (Majority Report on the Nomination). 380 Guliuzza, et. ai., sirpra note 6, at 426-429. See also Bork I-fe~ringsgenerally. 381 Bork tfearings, stqm note 4, at 87. 382 Id. at 280-83 383 Id- at 291. 384 Qlroted in Stevcn Lubet, Conjhzaiion Ethics: Presiiient Reagan's Nominees tu the United States Srcpreme Court, HARVARD JOURNAL OF LAW& PWC POUCY 229 (1990). 87 being too open in his responses to the questions of the Judiaary Cornmittee.= Still others suggested that perhaps Bork was a unique nominee, and thus deserved specïal treahnent £rom the Judiciary Committee.386 While these expianations may seem plausible, however, they tend to focus attention on the produd 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 too forthright with the Judiciq Comrnittee. JudgeBork was rejected because the majority of the Senate
Judiaary Cornmittee considered and rejected his substantive political views. In ths regard, as
Bmce Fein has noted, "the Senate's Mure to cohJudge Robert Bork as a Supreme Court
Justice resulted hom a flagrant rejection of the Senate's proper role in the confirmation
While it is true that Judge Bork deviated from the response pattern employed by virtudy all previous norninees in this century, his responses were dearly conditioned by the tenor of the
Senate's inquiry into his nomination. Mya few hours after President Reagan announced the
Bork nomination, Senator Edward Kennedy of Massachusetts was on the Senate fioor delivering these remarks about Judge Bork:
Robert brk's America is a land in which women would be forced into back-alley abortions, bladcs would sit at segregated lunch counters, rogue police codd break down citizens' doors in midnight raids, schoolchilciren could not be taught about evolution, writers and artists would be cemored at the whim or [sic] govement, and the doors of the Federal courts would be shut on the fingerç of millions of citizens for whom the judiciary is often the ody protector of the individual rights that are at the heart of our democracy.m
Senator Kennedy's comments were dearly not designed to lead to temperate and illumuiatùig hearuigs on the Bork nomination, but instead, as Senator Kennedy later adrnitted, "to sound the alarm and hold people in their places until we could get [opposition] material together. I was
385 See, e-g., id. at 230. 386 See, eg., Dworkin, supra note 5, at 101. 387 See Fein, çrrpra note 8, at 687. 388 133 Cong Rec. S918û-9189 (daily ed. July, 1,1987)(statement of Sen. Kennedy). 88 conhdent we codd win this oneTr9 As his f'BarYs hmerica" speech and orho. mmments revealed, Senator Kennedy had made up his mind about the nominee long before the hearings.3w
The primary goal of the hearings was thus not to enüghten, but to consolidate public support against the nominee.391 Judge Bork was keenly aware of this: "It was apparent hom Senator
Kennedy's speech after the nomination," Bork later wrote, "that positions 1had taken in the past would . . . be radicdy misrepresented. If 1 did not explain at the hearuigs, those misrepresentations would stand unanswered."392 Since it was dear kom the outset that the success of Bork's confinnation was linked to his ability to respond to the public charges made by Senator Kemedy 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
Judiaary Cornmittee in a way that previous nominees had not. If Judge Bork hoped that his answerç wodd clear up the "misrepresentations"3~of Senator Kennedy and others, however, the hearings were to prove him wrong.
Though several senators stated at the outset that the purpose of the Bork hearings was to examine Judge Bork's judiàal philosophy,394 it becarne dear that many members of the Judiaary
Cornmittee 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,3% attention invariabiy
389 Quoted in BRONNER, supra note 3, at 100. 390 See, e-g., Bork Hearings, srtpra note 4, at 32-35 (Stritemcnt of Senator Kennedy). This degree ofclosemindedness was exhibited by many Senators throughout the Bork confirmation process. As Judge Bork notes, many senators amounced their opposition to him long before the Senatc dcbate on the nomination was scheduled to begin, BORK, supra note 10, at 309. 392 See, e-g., Bork Hearings, supra note 4, at 59 (Statement of Senator Charles Crassley)('The partisans who adas 'generals' in this 'war' of mud slinging have had sornc success. In hct, sorne niembers of the Senate have outflanked each othcr for the honor of taking the most extrcme position, cven bcforc the first day of the hearings!"). 392 BORK, sripra note 10, at 279. 393 Id. 394 See, e.g., Bork Hearings, supra note 4, at 52,95 (Statements of Senators Dcnnis DeConcini and Joseph Biden, respecti vel y). 395 For example, JudgeBork issucd the following statcmcnt about the importance ofjudicial philosophyr ïhc judge's authority derives kom the fact that hc is applying the law and not his pcrsonal valucs. That is why the Amcrican public acccpts the deeisions of its courts, acccpts evm decisions that nullify the laws a majority of the clectoratc or their rcprescntatives votcd for. The judgc, to descrvz that trust and that authority, must be cvcry bit as governed by law as is the Congrcss, the Prcçident, the state Governors and I+s!atures, and the Amcrican people. No one, including a judgc, can bc above the Iaw. Only in thût way wi11 0 shifted away from his judiaal philosophy and towards his political views. For example,
though Senator Demis DeConani opened by tehgJudge Bork "1 will base rny decision on you
. . . on your abiiity and expenence, your temperament your integrity, and whether or not 1
believe you will decide the cases before you based on the Constih he employed a different standard. Throughout his questioning of Judge Bork, Senator DeConcini fmssed on Judge Bork's political views, at one point asking him, "when did you cease being a libertarian?"397 As consenrative acadernic Grover Rees later noted, DeConcini fell into that group of senators who "seemed detennined to obliterate any distinction between judiüal philosophy and political ideology."398 While senators like DeConcini at Ieast attempted to frame the debate in terrns of judiàai philosophy, many senators ÇeIt no need to distinguish between political ideology and judicial philosophy. Senators Ted Kennedy, Joesph Biden and Howard Metzenbaum, for example, followed the mode1 for a more active Senate role in the confirmation process laid out by Professor Laurence Tnbe in his 1985 book God Sme This Honorable Court.399 As joumalist Ethan Bronner has noted, Professor Tribe became the "intellectud ardutect" of the strategy used by Judiciary Cornmittee opponents to defeat Jtidge Bork-rn While Tribe's thesis was well-received by senators eager to use it to their politicai advantage, Tribe's historicai conclusions have been found wanting by several reviewers.qo1 Speafically, Trîbe's argument that the early history of Supreme Court confïrmations suggests that the Founders supported the broad ideologicai review undertaken by today's Senate has justice bc donc and the frecdorn of Amcricans assurcd. id. at 103-4. 398 Rees, supra note 7, and accompanying tcxt. See also, Myers, The Role of Special Interest Grortps in the Suprerne Court Nornir~ationof Robert Bork, 17 HASTINGSJOURNALOFCO~ONAL LAW 414 (1990). 399 Shortly after the publication of this book, Senators Kennedy, Biden and Metzenbaum went to dinner with Professor Tribc to talk about his thesis, BRONNER,~~~~~~note 3, at 129-33. 401 See, e.g., Friedman, supra note 13, and Omin Hatch, Save Tlris Court F rom Mat? 99 HARV.L. RM. 1347 (1986) (rcvicw of TRIBE,GOD SAVE THIS HONORABLE COURT). The effort to broaden the Senatefs role in the confirmation process traces its roots back well before the Bork hearings or the publication of God Save This Honorable Court. The Senate's scrutiny of judiàal nominations has gradually increased duruig the past century, as nominees were cded, fïrst to appear, and later to test@ in ever increasing detail about their attitudes on various cases and issues. The problems associated with this approach have been chronided, speaficdy duing this century, by nominees and senators alike, but as Professor Paul Freund has noted, the 'fmomenhimof history" has made it very diffidt for senators to reconsider this precedent-4a, An examination of many of the reasons why the campaign against Bork was successful, induding the role played by interest groups and the mediaruis beyond the scope of this thesis, but it is important to note that the questions fielded by Judge Bork are not dissùnitar to those fielded by other recent nominees. As Professors Frank Guliuzza, Daniel Reagan, and David Barrett have noted in a recent empirical study of questions posed to Supreme Court nominees, 'T3ork is sirnply not unique when compared with the entire sample of nominees. Ln fact, Bork's nomination look rernarkably similar to several others in the set/"'= Based upon this and previous evidence, it seems as diffimlt to avoid the conclusion that the rejection of Judge Bork marked the inevitable culmination of the Senate's efforts to inaease its share of power over Supreme Court nominations. Before conduding 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. Ln his opening stateement during the Bork hearings, Senator Charles Grassley suggested Chat "[plerhaps this hiror during the summer of 1987 only confirms how far the judici~yhas drifted 402 See, cg., Rader, supra note 35, at 788, 403 Freund, stcpra note 286, at 1162 (1988). 404 A good treatment of some of these issues is contained in Mycrç, supra note 398. 405 Guiiuua, &.al., srtrra note 6, at 427. Other nominees in the set includc Potter Stewart, Thurgood Marshall, William Rehnquisf, Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas. 91 korn its original purpose of l78i.'"w As Senator Grasdey's observations indiiîte, whde 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 constitutional interpretation and the proper role of the Judiciary in our system of govemment. "Make no mistake about it," Grassley continued, "the critics of this nominee know the law they prefer is judge-made, and therefore susceptible to diange by other judges. Their loud protests underscore that the law they prefer is not found in the Constitution or the statutes."m Giassley was joined in his protests by several other senators induckg Gordon Humphrey and Orrin Hat& Senator Humphrey maintained that the "most exeeme opposition to Judge Bork cornes kom those who consider the Supreme Court. . . a convenient place to sidestep the democratic process."~~Senator Hat& argued that "politics are injected into [confirmation proceedings] because many politicians are hoping to win hmuneleded judges what they cannot win in Congress or with the people of the United States of America."~~ While part of this must discrepancy must be attributed to partisanship,410 deeper and more fundamental questions about constitutional interpretation and the role of the Judiaary seem to be at issue in the contemporary confirmation process. These concems were best expressed by Senator William Roth of Delaware who commented during the Bork hearïngs: 1 am very troubled that the questioning of the nominee was too specific and too detailed. In effect, cornmittee members were extrading 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 to get a nominee to deade cases Our way. As a corollary, 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 didate how specific cases must be decided as a condition of confirmation. Never before has the 446 Bork Hearings, supra note 4, at 59 (Statement of Senator Grassley). 407 id- at 61. 408 ld. at û7 (Sta tement of Senator Humphrey). 409 id at 38 (Statement of Senator Hatch). 410 See, eg., Friedman, supra note 1, at 90 ("it is not surprising that both libcraI and cornervative senators have taken the view, whcn the nominee has been to their liking, that ideological opposition is generally inappropriate"). Senate done so-until now.411 If Senator 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 Çupreme Court nominee had not, before Bork, resulted in a rejection since John Parke~snomination in 1930, during the nineteenth century political rejections were common. The turn of the nineteenth century marked a cooling off period for the Senate, as Presidents Roosevelt, Taft and Wilson expanded the role of the presidency. However, over the last fifty years the confirmation process has again been moving in the direction of a more active Senate role. Recently, as Senator Roth's remarks indicate, this trend has once again reached the point where the conhation process is threatening to have a rnarked effed on how the Court actually performs its function. As historian Richard Friedman warned, "[tlhe actual role of the Court can be affeded sh-ongly by both the memory and the antiapation of conFumation battles."ll2 Given this truth, perhaps it is time to reevaluate the Senate's current role in the confirmation process. 411 133 Cong. Rec SI4779 (daily ed. Oct 22,1987)(statement of Senator Roth), quoted in Rader, supra note 35, at 81 1- 422 Friedman, supra note 1, at 85. SECTIONVII: EPI LOGUE The deàsive role played by the Senate Judiciary Cornmittee during the Bork con£ïrmation hearings challenged the popular belief that "Supreme Court nominations are widely accepted as a presidential prerogative."al3 While the Framers of the Constitution were clear that the Executive should play a greater role in deterrninïng the composition of the Supreme Court than the Senate,.iil the ambiguous nature of the Advice and Consent Ciause has aUowed senators to increase their role in judiaal selection considerably over the past two hundred years. If it is me, as the historian Charles Bladc suggested in his famous artide on the subjed, that "Advice" must by definition mean more than mere "Consent,".il5 no consensus on how the Senate should best administer its constitutionally prescribed duty has emerged. As the fast section argued, the contemporary Senate has htlfilled its "Advice and Consent" role by using substantive questions to determine whether a nominee possesses a suitable judiàal philosophy. This approach has tended to focus considerable attention on the nominees political views as well. This final section will look at the weaknesses and costs of that approach, and will examine some altemate suggestions for how the Senate can best fulfil iits "Advice and Consent" function. A. Predicting A ~ominee)sBehavior On The Cozrrt The changes evidenced in the confirmation process over the last fifty years in particular have been the resuit of a larger struggle over the proper role of the ludiam in Amencan society. As the Supreme Court has become increasingly more powerful, the Senate has increased its efforts to usurp power over judiaal selection. Since, as Professor Stephen Wermiel has 413 Grossman and Wasby, qiioted in Friedman,sqm note 1, at 83. See ah,Henry Monaghan, supra note 70,1203 (2988)("dunng the last century, the Scnate's actual role in the appointment process has diminished. In the t~vcnticth century, presidential ascendancy has so increased that public controversy seldom has resulted in unfavorable Senatc action"). 414 See generafly Section I of this thesis. 415 "What cxpcctation scems to be projected by the words, 'The Prcsidcnt .. . shalt nominatc, and by and with the Advicc and Consent of the Senatc shali appoint.. . Justices of the Suprerne Court . . . .?' Do thcsc words suggcst a mbbcrstamp function, con fincd to snccning out provcn malcfactots? I submit that thcy do not. 1 submit that thc word 'advicc,' unlcss its mcaning had changcd radically sincc 1787, makcs ncxt to impossible that conclusion," Black, A Note on Senatoriul Corrsideration of Suprerne Court Nominees, 79 YALE L.J. ,658 (1970). noted,"the confirmation process has become a rneans for members of the Senate, espeady those who serve on the Judiaary Cornmittee, to try to influence constitutional interpretation,"416 this development should not be surprising. Nohvithstanding the question of whether this is a proper exercise of Senate 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 ùiept at using ideology to forecast future Supreme Court voting patterns. From the earliest to the most recent appointments, senators and Presidents have found it difficult to predid the future behavior of Supreme Court justices. Several exarnples illushate the existence of a significant "surprise factor" when it comes to predicting how a nominee dl act as Justice317 The earliest example of the "surprise 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 partisan418 While on the bench, however, Story surprised both his supporters and his opponents by becoming, in the words of Professor Laurence Tribe, "an even more committed Federdist than Chef Justice Marshall. . . ."419 President Jackson also learned the hard way the effect of a Supreme Court seat on an individual's perspective. Jackson's first nominee to the Court, Henry Baldwin, infuriateci the President when he joined the majority opinion in Craig v. Missouri,Qo a case that boosted the Second U.S. Bank by invdidating state issued loan certificates.421 StiU another example is provided by Lincoln 416 stcphen J. \Vermiel, Confirrnins the Co?rstitrltioni The Role of the Setrate [ndiciary Cornmittee, 56 LAW AND CONTEMPOKARYPROBLEMS 122 (1993). 417 According to one study, "one justice in four has turned out to be quite differcnt from what his appointer wanted," R. Scigliano, THESUP~E COURT AND ïHE PRFSIDENCY,96-97 (1971). See also, Hatch, srcpra note 401, at 1356-58. For a view opposing thc existcnce of a "surprise factor," see TIZIBE,slrpra note 8, at 60-92. 418 Friedman, supra note 13, at 95. 419 TRIBE,srtpra note 8, at 64. 420 29 US. (4 Pet.) 410 (1830). 421 Friedman, srtpra note 1, at 1296. C: appointe Salmon P. Chase, who was appointeci, as Senator Omri Hat& has nateci, "in anticipation of his a£firmative vote on the constitutionality of legal tender laws."Q2 Soon after his appointment, Chase defied Lincoln by joining the majority in Hepburn v. Gn'r~oold,Q3a case ?which invalidated the Legal Tender Acts he had drded as Secretary of the Treasury. Modem Presidents have hred little better. Though President Theodore Roosevelt once said "1 should hold myself as guilty of an irreparable wrong to the nation if 1 should put [on the Court] any man . . . not absolutely sane and sound,"424 he felt the performance of his appointee Oliver Wendeil Holmes was neither sane nor sound. "1 could came out of a banana a judge with more backhne than that,"425 Roosevelt later wrote to his hiend Henry Cabot Lodge after reading Holmes's decision in the NOTfhGnt Smrifxes Case.& merexamples of disappointed Presidents indude: Calvin Coolidge, who was baffled by the influence of Justices Brandeis and Holmes over his appointee Harlan Ston-; President Truman, whose £riend Tom Clark uihuiated him by voting against Truman's takeover of the nation's steel miils in 1952a; President Eisenhower, who responded to a question about whethes he had made any mistakes while in office by saying, "Ys,two, and they are both sitang on the Supreme Courtr"429 and hallyI Richard Nixon, who was upset by Lavis Powell over the issue of wiretapping.4Jo 422 Hat& supra note 401,1357 (1986). In disasirtg the proposeci nomination of Chase, Lincoln expIained his choice: "[W]e wish for a Chief Justice who will sustaùi what has been done in regard to emancipation and the legal 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 Friemsupra note 1, at 1298. 425 Quoted in id. Sn abGOULD, THEPRESIDENCY OFTHEODORE ROOSEVELT, 6344 (1991). Roosevelt a pparen tIy never forgave Hofmes, writing to his fiend Lodge several years later that Holmes was "a bitter disappointment, not because of any one decision but because of his general attitude," Letter from Theodore Roosevelt to Henry Cabot Lodge, September 4,1906, quoted in Friedman, supra note 13, at 1299. 426 193 US. 197 (1904). 427 Freund, supra note 1, at 1156. 428 Mccüuouai, supra note 330, at 901. 429 TR[BE,supra note 8, at 51. 430 One reason Nixon nominateci Powell was Powell's position in favor of wiretapping. During his days in private ptactice, Powell wrote an article in which he defended the right of the President to engage in wiretapping without Court approval. 'The outcry against wiretapping is a tempest in a teapot," Powell wrote, "[tlheir are ody a few hundred wiretaps annually and these are directed at those who seek to subvert our democratic form of government." According to Bramer, "[t] he artide was read and lovingly teprinted in the [Nixon] White House," quoted in BRONNER,supra note 3, at î2-3. Shortfy after joining the Court, howcver, Powell recanted his position. The Senate has also done a poor job of appraising the putative philosophies of nominees. Appeals Court Judge John J. Parker, who was rejected by the Senate in 1930 prirnarily due to concems that he was anti-labofi31 and mti-civil rights,q32 tumed out to be quite liberal in his views and very sympathetic towards labor and b1acks.m Parker's later record on the Fourth Circuit Court of Appeals so thoroughly contradicted the predictions made by opponents of his nomination, that during the 1930s several senators adrnitted they had erred in voting againçt hirn.4u Moreover, attempts to predict the future behavior of norninees could have deprived the Court of some of its greatest members. Several senators opposed John Marshall Harian because he was a former slave-holder and opponent of the antislavery Thirteenth Amendment.43 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 Bladc 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 member of the Ku Klux Klan at the time of his confirmation,m and Earl Warren had been responsible for the intemment of Japanese- qtioted iri BRONNER, sripra notc 3, at 22-3. Shortly after joining the Court, however, Po,vell recanted his position. Writing for the majority in Urtited States o. United St~tesDistrict Court (407 U-S. 297), Powcll argued that the Executive had no powcr to order wiretapping without Court approval. 431 The genesis of this view tvas 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 comments he made campaigning for the governorship of North Carolina a decade earlier. 'The negro as a dass does not desire to enter politics," Parker had said. 'The Repubtican Party of North Carolina does not dcsirc him to do so. Wcrccognize the fact that hc has not reachcd that stage in his developmcnt when he can sharc the burdcns and responsibiIities of govemcnt," quoted in Danclski, Ideology as a Grortnd for the Rejection of the Rork Nomitratiott ,84 NORTHWESTERNL. RN., 914 (1990). 433 See gcnerally, HARRIS,supra notc 61, at 226-132;Danelski, supra note 432, at 912-924; Friedman, sripra note 13, at 1323. 434 Danclski, supra notc 432, at 915. According to Danelski, the American Fcderation of Labor "apologized for its opposition," id. at 915. 435 Friedman, supra note 1, at 25. 436 163 US. 537 (1896). This ,vas the case that oblitcratcd the civil-rights gains made by blacks during Reconstruction, legitimizing segregation and the Jim Crow systcm through the introduction of the "scparate but equal" doctrine. Harlan was the Court's greatcst dcfcndcr of the equal rights of blacks beforc the 1950s. fn his lonc dissent in Plessy, Harlan wrotc that the "Constitution is color-blind, and ncither knows nor toIcrates dasses among citizens." 437 Sce T. Halpcr, Senate Rejection of Suprerne Court Nominees, 22 DRAKEL. W.,207 (1972); Fein, sripra notc 9, at 681. Arnetiranr whde he rasGovemor of California during Wodd War Tw0.43 Despite this, however, both men later partiapated in the landmark civil-rïghts case of Bravn v. Board ~f Educration. Though recent confïrmation proceedings seem to suggest that the Senate currently views the confirmation process as a means to influence constitutional interpretationf139little evidence exists to prove that this approach has worked. As Senator Omn Hat& has written, "history suggests that neither the president nor the Senate is compIetely able to dictate jurispmdentid directions by selection of judges."m But if the substantive questioning of nominees does not help senators influence constitutional interpretation, some have argued it has imposed significant costs. One of these cos6 is the supposed threat that an active Senate review poses to judiaal independence. B. Judicïal Independence During his 1987 confirmation hearings, Judge Anthony Kennedy testified ihat the primary reason Supreme Court nominees should refuse to answer substantive questions "is that the public expects the judge wili keep an open rnind."Mi Indeed, this expectation has been part of our political culture since the hamuig 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 hctioning of the Judiciary, they did not foresee that the confirmation process itself would evolve to become a threat to judiaal independence. Thus the second bock against an active 438 Fein, szcpra note 9, at 681. 439 WermieI, srrprn note 416, a t 122. 440 Hatch, supra note 401, at 2361. 441 Hearings before the Cornmittee on the lrrdiciary of the Urzited States Senate, One-f-lrt ridredth Congress, f irst Session on the Nomirratiorz of Anthony M. Kennedy tu be Associate \rlstice of the Si~prerneCourt ofthe United Stutes at 217 (1987). 442 In TIre Federalist No. 78,Alexander HamiIton dcfcndcd the decision to grant lifc tcnurc to judgcs in this way: 'The cornpletc indcpcndcnce of thc courts of justicc is peculiarly csscntial in a limitcd Constitution. . . . [The Constitution] can bc prcscrvcd in practice no othcr way than through the medium of courts of justice, whosc duty it must bc to declare al1 acts contrary to the manifest tcnor of thc Constitution void," ALEXANDERHAMILTON, THE FEDERAUSTNO. 78, srrpra note 69, a t 466. See also, 2 FARRAND,supra note 14, a t 73-84. 98 Senate role in the Supreme Court confirmation process is the damage this approach has done to judicial independence. Looking badc 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 role has been seen as a largely political one. If perceptions of the Court have affected the confirmation process, however, the relationship has also dearly cut the other way. The prolonged public debates that have corne to characterize modem confirmation proceedings have served, in the words of Judge Robert Bork, to "diill the dimate in which judiad deliberations take place, to erode public confîdence in the impartiality of the courts, and to endanger the independence of the judiaary."M3 The Senate's role in the confirmation process has evolved from its humble origùis to the present state, where questions are asked and answers are expected-ew While this development has been lauded by sorne,.>-i5others have uncovered senous flaws in this approach. As Professor Steven Lubet has noted "[v]imially every answer by every nominee may be interpreted as suggesting a possible future niling. Indeed, even a cornmitment to open-rnindedness may be seen as prejudiaal to parties seeking to maintain the finality of an established precedent."m During the Bork hearings several senators, including Orrin Hatch also found fault with the scope of the Senate's inquiry. In his opening statement Senator Hatch said, The great danger 1 see in the impending ideological inquisition is injucy to the independence and integrity of the Supreme Court and the whoIe federal judiciary. 443 THENEW YORK TIMES, Oct, 10,7987 at 13. 444 BORK, supra note IO, at 347, ("[tlhe senators are now accustomed to insisting upon answers to doctrÏnal questiom"). 445 See, e.g., Nina Totenberg, 73e Confirnration Process and the Public: To Know Or Not To Know, 101 HARV. L REV., 1213-1229 (1988). Commenting upon then-fudge Scalia's refusa1 to answer certain questions during his Supt~me Court confirmation hearings,Totcnberg observed, "[the Judiuary]Committee shouid require some cooperation hma nominee in discussing generai judicial philosophy as a condition for conEirmationm(p. 1219). According to Totenberg, The uudiaary] Cornmittee's heanngs on the nomination of Judge Robert Bork were . . . the first timc the process workcd propcrly" (p.1220). 446 Lubct, supra note 384, at 24%. See also, Stevcn Carter, The Confirmation Mess, 101 HARV.L. REV., 1194 (1988) ("a nominee is not indcpendcnt whcn she is quizzed, openly or not, on the di.grce of her reverence for particular a prcccdents"). When we undertake to judge a judge according to political rather than legd aiteria, we have stripped the judicial office of all that rnakes it a distinct separated power. tt 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 law which have served us so well to check political excesses and fervor over the past 200 years. I 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 Me, liberty or property . . . . Senate precedent does not support subjecting judicial nominees to ideological inquisitions. Moreover, the Constitution itself does not support that practice.a7 Though Senator Hat& was wrong to suggest that Senate precedent "does not support subjecting judiaal nominees to ideological inquisitions," he was nght to assert that "the Constitution itself does not support ths practice."G8 hdeed, the fear that the Senate would politicize the selection of judicial officers was one of the key factors James Madison cited to convince the delegates at the Constitutional Convention to drop the idea of senatorial As the Bork hearings demonstrated, the fears of Madison and Senator Hat& have clearly been borne out by the current confirmation process. Madison, as Judge Randall Rader teils us, warned the Constitutional Convention that "the means of selecting judges could affect the institutional character of the third brandi."ao Today, this prediction has been realized. The Neru Repubiic warned alter the Bork rejection, "[tlhe only norninee who in the future will be able to survive the dernagoguery will be sorneone who cm respond in kind."sl But no Supreme Court norninee cm "respond in kind to the ad hominem attacks of senators; to do so would be to demonstrate a degree of intemperance and thoughtlessness not befitting a Supreme Court Justice. On the other hand, as the Bork nomination showed, those nomùiees who attempt to Bork Hearings, supra note 4, at 36. ln. See srtpra notes 34-35, and accompanying tcxt. Radcr, supra note 35, at 780. Rotunda, szipra note 323, at 586. 100 respond to the questions of senators undennine their impartiaiity and compromise their judicial independence. C. Role Distinction In commenting upon the nomination of Judge Robert Bork, then Judiaary Cornmittee 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 to make the nominationfi2 While this comment suggests that Biden views the role of the President and that of the Çenate to be corresponding, this view seems to de* both history and prudence. As historian Ridiard Friedman has aptly noted,"the roles of the president and the Senate are different, and there is no necessary symmetry in the factors that they should consider."*3 To remto the Constitutional Convention, a major reason the Frarners vested the power of appointment in the Executive was because they feared the parochialisrn of the Senate.= Equally important, Madison Çelt sîrongly that the President would be considered a "national officer, acting for and equally sympathizing with every part of the U[nited] Çtates.''.i= Therefore, the President was given the power to select, while the Senate, in the spirit of checks and balances, was given the power to ratify or reject the President's choice. The distinction between these two roles 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 so in making the nomination. . .. When a President attempts to direct the courfs future [sic] course by submitting a nominee known to bc cornmitted to a particular philosophy, it should be a completely sufficient basis for a Senator's ncgative votc that the nominee's philosophy is one that the Scnator believcs wodd bc bad for the country," 133 Coq. Rec. 511264 (5 Aug., 1987), qrioted in Vicira & Gros, slipru notc 13 at 351 n. 197. Seealso, Black, supra note 415, at 658. 453 Friedman, supra note 2, at 87, 454 2 FARRAND,supra notc 14, at 81. Madison argucd: "If thc 2d. branch alonc should have [the powcr of appointmcnt], the judgcs might bc appointcd by a minority of the pcoplc, tho' by a majority, of the Statcs, which could not be justificd on any principtc as thcir procecdings wcrc to rclatc to the pcoplc, rathcr than to the Statcs." Sec also Fcin, supra notc 9, at 673, who writes, "(scnators'l clcctions from parochial statc constituencies in campaigns is which votes on judiaal nominces are rarely an issue dcprivc thcm of any mandate to dcny confirmation bccausc of a nominec's judicial philosophy." 455 2 FARRAND,supra notc 14, at 81. See also, Fcin, szcpra notc 9, at 675), ("a major reason for confiding thc appointmcnt powcr in the prcsidcnt rathcr than the Icgislaturc tvas the uniquc national perspective of the forrncr, an aspcct that is cspecially important in sclecting Justices who will cxpound the Constitution for a nationwidc consti tuency"). important than preserving the structural integrity of our govemment.*2 The Senate is not charged with the task of determining whether the President's selection is ideal, or whether, as Joe Biden asserted during the Bork hearing "[the nominees] pxtïcular philosophy is an appropriate one at this time in our history."%3 It is charged with deterrnining whether the choice is acceptable. Surely it does not take as broad and potentially destructive a force as the curent Senate role in the confinnation process to accomplish this task D. The Future The role played by the Senate, specifically the Senate Judiciary Cornmittee, in judicial selection has expanded beyond what history and the Constitution suggest is appropriate. But if a proper reading of the Advice and Consent Clause rejects the ideological review of nominees, to what degree can the Senate sautinize judicial nominees? If one accepts histonan Charles Bladc's reasonable assertion that "Advice" must by definition mean more than c consent,"^ it becomes dear that the Senate is not meant to function merely as a "nibber stamp" on presidential nominations. What then, is the Senate's proper role? Whde the Appoinfments Clause prescriies no limits on the Senate's "Advice" function, some observers have suggested that other sections of the Constitution are dispositive. Senator Omh Hatch, for example, has written that the Senate should take its me from Artide VI, which requires senatom and judges to take an oath to support the constitution.^ "Senat~rs,'~ according to Hatch, "should sûive to satisfy themselves in confirmation proceedings that a nominee WU uphold the Constitution and laws of the United States."* According to this - - 462 Friedman, supra note 23, at 1320. 463 Qrroted in CuIiuua et. al., supra note 6, at 416. 464 See supra note 415, and accompanying tcxt. 465 US CONST.,ARTICLE Vi states: "The Senators and thc Reprcscntatives . . .and the Members of the scveral Statc Legislatures, and al1 cxccutive and judiaal Officcrs, both of the United States and of the sevcral States, shalt be bound by Oath or Affirmation, to support this Constitution." 466 Hatch, supra note 401, at 1355. Senator Chartes Grassley has argued that this oath "irnposcs a duty on the president to appoint, and on the Senate to confim, only those judicial candidates who sccm likcly to intcrprct that Constitution and those laws according to their tme rneanings," C. Grassley, \rrdicial Nominations and the Senate's 'Advice and Consnit' Frtndion,T~~JUDGES WAR,(P. McGuigan & D. Weyrich cd. )IO7 (1989). 103 standard, senatorr cm legitimately explore a judgetr jii8cial philoraphy, but ndy to the rxtent that such an inqujr sheds light on a nominee's ability to uphold his oath to the Constitution. How such a standard rnight work in practice was described by Senator Strom Thurmond during the cobation hearings of Judge Robert Bork: Some have said that philosophy should not be considered at al1 in the confirmation process. . . . 1 believe that a candidate's philosophy may be property considered, but philosophy should not be the sole criteria for rejecting a nominee with one notable exception. The one exception is when a nominee ctearly does not support the basic, long- standing consensus principles of ouc Nation . .. 1 do not believe that philosophy alone should bar a nominee from the Court untess that nominee holds a belief that is so contrary to the fundamental, long-standing principles of this country that a nominee's seMce would be inconsistent with the very essence of this country's shared values.467 Induded among the counhies shared values, Thumiond explained, are a beiief in hee speech and equal rights.468 Others have argued in favor of a different standard for evaluating the proper role of the Senate in judiaal selection. Historians Norman Vieira and Leonard Gross suggest that "[slince the Framers sought to create an independent judiciary by granting Life tenure to federal judges, it can be argueci that the 'advice and consent' dause should be interpreted in a manner consistent with the goal of securing an independent judiàary."~9While this certainly seems reasonable, otherç have suggested an even more conaete standard. Professor Paul Freund has suggested the adoption of Judiciary Cornmittee desto "provide senators and nominees with some guidelines."470 This may weiI be the best solution. It is dear that the imprecise nature of the Advice and Consent Clause has allowed the Senate to play a greater role in judicial selection thm it was meant to. By adopting clear and preQse boundaries, the Senate codd go a long way towards limiting the abuses that have corne to characterize the modem conhimation process. 467 Bork f-karings, stipra note 4, at 19. This view is shared by historian Richard Friedman, who ;&.-rites: "[AI Senator should not put ideologîcal considerations totally out of mind. He should satisfy hirnself that the nominee does not hold views the Senator regards as so repugnant that he perceives harm merely in giving the nominee the opportunity to air them €rom the platform of thesuprcme Court," Friedman, supra note 13, at 1318. 469 Vieira & Gross, supra note 13, at 334. 470 Freund, supra note 286, at 1147. E. Conclusion It is dear fiom the Bork hearings that the current Senate has corne to see itself as an "equal partner with the President in making [Supreme Court] appointments."471 Though available historical evidence suggests that the Framers intended for the President to be the "principal agent" in charge of selecting Justices,3n the imprecise language of the Advice and Consent Clause of Constitution has aiiowed the Senate to expand its role in the codirmation process significantly since 1789. The controversy over the Senate's proper role in Supreme Court nominations is about constitutional interpretation, and, on a deeper level, about the proper role of the Court in the Amencan system of govenunent. As the Court has become a more powerfd force, senators have sought to infiuence its decisions by controllhg its membership. While this approached has occasionally worked, it has hequently failed. Moreover, the Senate's efforts to shape the Court ideologicdy have tended to focus on probable voting patterns, undennining the public's faith in the independence of the Judiaary and in the structural integrity of the govemment.4n As the least dernomatic brandi of the government, the power of the Supreme Court is inextricably linked to the willingness of the public to abide by ils decisions. As the experience of the eady twentieth century demonstrated, public faith in the COU^ has generally been high when 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 diminished the stature of the Court. 471 Bork Hearings, stcpra note 4 at 121 (Çtatement of Senator Robert Byrd). 472 See supra note 77, and accornpanying text. a 473 Friedman, supra note 2, at 95. 1. OFFICIAL AND SEMI-OFFICIAL PUBLICATIONS Biden Report, Response Prepared to White House Analysis of Judge Bork's Record. Reprintd itr 9 CmzoL.R. 219 (1987). Department of Justice Report, A Response to the Critics of Judge Robert H. Bork. Reprinted in 9 CARDOZOL.R. 373 (1987)- Hearings on the Nornination of Robert H. Bork to be an Associate Justice of the Suprerne Court of the United Skafes Before the Senate Cornmittee on the Judiciary, 100th Cong., 1st Sess. (1987). Hearings Before the Cornmittee on the Judiciay, United States Senate, on the Nomination of Abe Fortas, of Tennessee, fo be Chief Justice of the United Stafes and Homer Thornberry, of Texas, to be an Associate Iustice of fhe Supreme Court of the United States, 90th Cong., 2nd Sess. (1968). Heurings Before the Coinmittee on the Iztdiciary, United States Senate, on the Nomination of John Marshall Harlan, of New York, to lie an Associate Iustice of the Suprerne Court of the United States, 84th Cong., 1st Sess. (1955). Hearings before the Cornmittee on the [udiriary of the United States Senate, One-Hundredth Congress, First Session on the Nomination of Anthony M. Kennedy fo be Associate Justice of the Sziprerne Corrrt of the Unifed States (1987). Hearings Before the Cornntittee on the ludiciary, United Stafes Senafe, on the Nomination of Thurgood Marshall, of New York, fo be an Associate Justice of the Suprone Court of the United States, 90th Cong., 1st Sess. (1967). Hearings Before the Cornmittee on the Judiciary, United States Senate, on the Nomination of Sandra Day O'Connor to be an Associate Justice of the Sriprerne Court of the United States, 97th Cong., 1st Sess. (1981). Hean'ngs Before the Senate Committee on the luciiciary, United States Senate, on the Nominations of William Hubbs Rehnquisf, of Arizona, and Lewis F. Porwll, Ir., of Virginia, to be Associate Justices of the Supreme Court of the United States, 92nd Cong., 1st Sess. (1971). Hearings Before the Cornmittee on the Judiciary, United Stafes Senafe, on the Nomination of Iudge Antonin Scalia, to be an Associate Justice of the Supreme Court of the United States, 99th Cong., 1st. Sess. (1986)- US.Congress. Senate. Cornmittee on the Judicianj. Subcommiffeeon the Separalion of Po-uers, Aduice and Consent on Supreme Court Nominations, (94th Congress, 2nd Session, 21 November, 1975). White House Report, Information on Judge Bork's Qualzjkations, Iudicial Record ô. Related Subjects. 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