College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 1970 The olitP ics of "Advice and Consent" William F. Swindler William & Mary Law School Repository Citation Swindler, William F., "The oP litics of "Advice and Consent"" (1970). Popular Media. 269. https://scholarship.law.wm.edu/popular_media/269 Copyright c 1970 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media The Politics of "Advice and Consent" by William F. Swindler Counting the rejections of Judges products of a political antipathy be- ITH THE SENATE'S rejection of Haynsworth and Carswell, there W Clement F. Haynsworth, Jr., last tween the Senate and the White House. are now twenty-three nominations November and G. Harrold Carswell But the rejection of President Hoover's to the Supreme Court that have last April, the number of unsuccessful nomination of John J. Parker in 1930, been defeated or postponed by the Presidential nominations for the Su- the filibuster against Lyndon Johnson's Senate or withdrawn by the President preme Court of the United States over proposal of Justice Fortas to succeed in the face of defeat. The Senate history now Chief Justice Warren and the two Sen- is jealous of its "advice and our 180 years of judicial consent" function, and history stands at twenty-six. Of this total, ate rejections of President Nixon's shows that confirmation will be eleven were rejected by a recorded vote nominees were prompted, with an in- withheld for a variety of reasons. and seven were withdrawn by the White creasing degree of recognition of the The process of confirmation or House when it became clear they fact, by the Senate's hostility to what is rejection by the Senate is a part of would not be approved. As to the other purported to be the constitutional phi- the American political system- eight, the Senate either took no action losophy of the candidates. Fortas's op- unavoidably, perennially and, or noted that action was to be "post- position couched its arguments in perhaps, logically. poned" indefinitely. 1 (See the tabula- terms of "cronyism", but it was fairly tion on page 536.) evident that the root of the matter was What these statistics tell about the his identification with broad and per- interrelationships between the legisla- missive doctrines on defendants' rights. tive and executive branches of the gov- Parker, Haynsworth and Carswell were ernment may be estimated best by re- opposed candidly for their basic con- viewing the contemporary circum- victions on socioeconomic issues of the stances of the nominations. Most of the day. cases of declined appointments, coming in the early days of the Republic, re- Partisanship and Politics flected a denigration of the Court itself Are Always Involved as a career opportunity for successful The elements of partisanship or po- lawyers or politicians. Most of the re- litical consideration in the selection of jections of nominees, it is apparent, judicial appointees have been present were incidents to a series of party in cases of confirmation as often as in struggles, as in the case of the fierce cases of rejection. "I observe that old contest between Grover Cleveland and Cushing is dead", wrote Thomas Jef- Senator David Hill for control of the ferson to Albert Gallatin in 1810 when New York Democratic machine in the Associate Justice William Cushing 1880s, or in the case of John Tyler, re- passed from the scene. "At length, jected by his own Whig Party in the then, we have a chance of getting a Re- bitter political divisions of 1844. A rel- publican [i. e., Democratic] majority 2 ative minority of the unsuccessful nom- in the Supreme Judiciary." James inations turned on the merits of the in- Polk, writing to Martin Van Buren in dividual nominees. 1837, observed with satisfaction that "with Judges Catron and McKinley It may be argued that a distinction on between the rejections of the nine- teenth century and the four to date in 1. Six others were approved by the Senate the twentieth century may be made on but refused to accept the appointments, while a seventh-Abraham Lincoln's Secretary of a basis of ideologies. The cases from War, Edwin M. Stanton-was confirmed but Washington's day through the second died before he could he commissioned and sworn in. administration of Grover Cleveland 2. Quoted in 1 BouDiN, GOVERNMENT BY were, almost without exception, by- JuDIcAaY 536 (1932). June, 1970 * Volume 56 533 "Advice and Consent" the bench, the Court will be strong, tion of the constitutional process of ap- had served as an Associate Justice for and will have a decided Democratic pointment-the middle step between eighteen months and then resigned. bias". 3 In 1902 Theodore Roosevelt Presidential nomination and Presiden- But when Chief Justice John Jay re- commented to Henry Cabot Lodge: "In tial commission. 7 The realities of the signed four years later, Rutledge lost the ordinary and low sense which we process in operation have not borne no time in writing to Washington that attach to the words 'partisan' and 'poli- out Alexander Hamilton's optimistic he would "have no objection to take tician,' a judge of the Supreme Court assumption: the place which [Jayl holds". Rut- should be neither. But in the higher ledge's letter makes clear that he felt It will be the office of the president sense, in the proper sense, he is not in to nominate, and with the advice and that the Chief's chair was the one he my judgment fitted for the position un- consent of the senate to appoint. There should have had in the first place, less he is a party man, a constructive will of course be no exertion of choice since "many of my friends were dis- statesman." 4 Roosevelt, incidentally, on the part of the senate. They may pleased at my accepting the office of defeat one choice of the executive, and Associate Judge, . conceiving (as I was referring to Oliver Wendell oblige him to make another; but they Holmes, a prospective nominee. cannot themselves choose--they can thought, very justly) that my preten- The politics of "advice and con- only ratify or reject the choice, of the sions to the office of Chief Justice were sent", manifest in many confirmations president. They might even entertain a at least equal to Mr. Jay's in point of as well as most rejections of Supreme preference to some other person, at the law-knowledge, with the additional very moment they were assenting to weight of much longer experience and Court nominees, is perhaps endemic in the one proposed; because there might practice". 1 the process set out in Article II, Sec- be no positive ground of opposition to much greater tion 2, of the Constitution.5 "The Sen- him; and they could not be sure, if Self-seeking and self-adulating as ate cannot originate an appointment. they withhold their assent, that the Rutledge's words may sound, it had Its constitutional action is confined to subsequent nomination would fall upon been rather generally recognized in their favorite, or upon any other per- 1789, when Washington was choosing the simple affirmation or rejection of son in their estimation more meritori- the President's nominations, and such ous than the one rejected. Thus it the first candidates for the new Su- nominations fail whenever it rejects could hardly happen that the majority preme Court, that fundamentally politi- them", stated an early nineteenth cen- of the senate would feel any other cal considerations were involved. John tury opinion of the Attorney General. complacency towards the object of an Adams himself had advised: "If ability appointment, than such, as the appear- is desired, take Rutledge; if politics, "The Senate may suggest conditions ances of merit, might inspire, and the and limitations to the President, but it proofs of the want of it, destroy.8 Jay." Washington knew precisely what cannot vary those submitted by him, he wanted; he not only took Jay for for no appointment can be made ex- Senate Prepares To Vote his first Chief Justice, but he saw to it cept on his nomination, agreed to with- Down for the First Time that every one of his appointments was '6 out qualifications or alteration." The Olympian detachment with a good Federalist. Now, perhaps to In the course of his struggle for which Hamilton assumed (or affected make amends, he hastened to accede to Judge Carswell's confirmation, Presi- to assume) that the Senate would ra- Rutledge's suggestion and grant him a dent Nixon wrote a manifestly ill-ad- tify or reject Presidential nominations recess appointment, directing that the vised and ill-informed letter to Senator was dispelled within six years after the Secretary of State prepare his commis- William B. Saxbe of Ohio, in which he Constitution went into operation. Ham- sion forthwith. complained that failure of the Senate ilton himself wrote of the nominee for Having taken the first and third to "advise and consent" to the nomina- the Chief Justiceship in 1795 that "if it steps in the appointing process, Wash- tion amounted to denying the Chief be really true . that he has exposed ington placed himself in a position of Executive the right "accorded all pre- himself by improper conduct in pecu- depending utterly upon the Senate to vious Presidents" to place men of his niary transactions", he should be re- take the indispensable middle step. The choice on the bench. Not only is this jected, while a leading New Jersey at- President should have recalled the contradicted by history, but it suggests torney added that the nominee's "in- that the Senate's ratification should be sensitivity" in certain public issues little more than pro forma, and it con- made it clear that he "ought not to pre- 3.