Judicial Nominations

Hamilton on Judicial Nominations

Wisdom from Federalist 76.

|The Volokh Conspiracy |

The spectacle of Supreme Court confirmation hearing is upon us once again. In theory, such hearings could serve a useful purpose, as Adam White explains in the Washington Post. Alas, our Senators have generally not been up to the task.

Confirmation hearings tend to confirm the wisdom of granting the nomination power to the President, as opposed to the Senate. Alexander Hamilton explained this rationale in Federalist No. 76: "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment." And even when the White House is not occupied by a "man of discernment," allowing the President to make the nomination is preferable to leaving it in the hands of some Senate Committee.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

Why, then, is Senate advice and consent required at all? To prevent the President from appointing his friends or cronies. As Hamilton explains:

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 favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Not only do I think Hamilton was correct. I also believe that this understanding would justify fairly deferential Senate review of a President's judicial nominations, such that confirmation of qualified individuals would be assured. Alas, such a norm (much like that of giving qualified nominees prompt consideration) has rarely held sway. It is, however, the approach I would prefer, and one that I believe would help avoid the mess that judicial confirmations have become.

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  1. Boring, can you please put this in hip hop form??

    1. That’s downright funny. +1 sir.

    2. Oh come on, did you not hear “Write Like You’re Running out of Time” in your head while reading this?

  2. I also believe that this understanding would justify fairly deferential Senate review of a President’s judicial nominations, such that confirmation of qualified individuals would be assured. Alas, such a norm (much like that of giving qualified nominees prompt consideration) has rarely held sway. It is, however, the approach I would prefer, and one that I believe would help avoid the mess that judicial confirmations have become.

    Ah, the inerrancy of the Founding Fathers – who of course also wrote slavery into the Constitution.

    Actually, there was considerable deference to judicial nominations until pretty recently – Scalia was confirmed 98-0, while Ginsburg was confirmed 96-3. You might want to check with McConnell, who has openly and gleefully taken credit for blocking loads of Obama’s nominees – including, of course, Merrick Garland.

    Republicans want to think it all started with Bork – whose nomination to SCOTUS was defeated with the help of 6 Republican senators (he was confirmed unanimously to the DC Circuit earlier). It didn’t.

    1. Keep in mind Stevens and Souter were Republican appointees. So of course Democrats liked the status quo from 1950s through Souter…so at worst you get a Kennedy or O’Connor by throwing Republicans a bone every other nomination. So the conventional wisdom after the Supreme Court’s golden years of Civil Rights cases was that justices would gravitate to the left to be on the right side of history…but there were periods where the Court was conservative and thwarted progress.

    2. It was either that slavery was by a roundabout way granted some leniency in the Constitution (you won’t find it mentioned once) or we didn’t have a nation. The Founders were, actually quite correct in understanding that estimation.

      Now, would it be a better world if there were two nations, one slave in the South and one free in the North, after the Revolution? I don’t know. Oh, and don’t forget that in the 1790 census, there were some 40,000 or so slaves in the north, concentrated in NY and NJ.

      1. Uh the 13th amendment explicitly condones slavery as a punishment for crimes. Slavery is legal RIGHT NOW in the United States.

        1. We were speaking about the Founders, so therefore by common sense, you should have thought of the original constitution and Bill of Rights. Duh.

      2. “It was either that slavery was by a roundabout way granted some leniency in the Constitution (you won’t find it mentioned once) or we didn’t have a nation.”

        I agree that, without the compromises over slavery, the Constitution itself, and thus the new nation, would have been likely to fail, or at the very least to come out looking rather different than they did.

        But your parenthetical observation precisely supports the argument that you are criticizing. Sure, the words slave and slavery never appear in the Constitution, but that’s precisely because the people writing the Constitution were well aware of how hypocritical it would look for a new nation, founded on the Enlightenment principles of liberty and natural rights, to have the words in their founding document.

        Are you really suggesting that Article I, Section 2, and Article I, Section 9, and Article IV, Section 2, did not “[write] slavery into the Constitution,” just because they managed to construct a series of convenient euphemisms rather than using the actual word?

        1. without the compromises over slavery, the Constitution itself, and thus the new nation, would have been likely to fail,

          Yet even with them it effectively failed, a mere 70 years later.

        2. We have to judge them by the standards of the time. Before 1700, slavery was legal essentially worldwide essentially to the beginning of time. Things were in the process of changing for the better, and America was founded in the transition period.

    3. “blocking loads of Obama’s nominees”

      Dems blocked loads of Bush’s nominees in 2007-2009.

      “including, of course, Merrick Garland”

      Miguel Estrada says hi.

      1. Estrada doesn’t count because dems were smart enough to block him from the DC Circuit before he could be nominated for SCOTUS.

        That is TOTALLY DIFFERENT.

  3. I wonder if Mr. Adler or someone who reads this could post a link to his writings in 2016 expressing the same sentiments then as he is expressing now? Or maybe he and the Republicans believed that Judge Garland was a ‘friend or crony’ of President Obama’s? I mean, Merrick and Barack did shoot a lot of hoops together and down some suds afterwards, didn’t they?

    1. For what it’s worth, were I in the Senate I would vote to confirm Garland to the Supreme Court, but I’ve always supported the prompt consideration and confirmation of all qualified judicial nominees. The Senate, however, has not hewed to this view for quite some time, so I am not ready to predict that Garland will be confirmed. But whatever course the Senate takes, I hope that Garland is treated with respect. #NoBorking.

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/16/initial-thoughts-on-president-obamas-decision-to-nominate-judge-merrick-garland-to-the-supreme-court/

  4. “…..to the observation of a body whose opinion would have great weight in forming that of the public…..”

    Alex, you are a hoot!

    To be fair, he never would have conceived of a Senate manned by the likes of Lizzie the fake Cherokee or the vituperative anti-Catholic bigot, Diane Feinstein or the not quite ready for junior varsity Jeopardy, Kirsten Gillibrand.

    1. Hamilton, who had to deal with (and who was eventually shot by) someone as unscrupulous and mealy mouthed as Aaron Burr, surely could imagine Warren or Feinstein when it came to the personal traits of being fools and louts.

      He would have trouble fathoming their policy positions on a whole host of issues though.

      1. If Hamilton didn’t want to get shot by Burr he could have simply not shown up for the duel. Burr was just as likely to be injured as Hamilton was.

    2. If you mean women in the Senate would not have been on Hamilton’s radar, I dunno.

  5. Hard disagree on this one. I think the Founding Fathers got this one right. Separating the nomination and confirmation process is an important separation of powers so that a President who is not a “man of discernment,” like the one currently in Power, cannot unilaterally nominate his close friends and family to positions of power without some oversight. Supreme Court positions are likely the most important positions subject to nomination and confirmation, perhaps even more so than Cabinet level positions, since they are the ones who get to “say what the law is.”

    1. It is still amusing that Trump is this abhorrent President when his predecessor used the intel community to spy on political rivals and leak fake dirt to the press.

      Yes, TRUMP is the problem…NOT the guy who did it. Or the nominee who was in the room and approved of all of the moves.

      1. The Senate Intelligence Committee begs to differ, and for some mysterious reason Durham won’t be issuing his report before the election.

        Wonder why.

        I guess none of that was reported on Fox.

        1. Wow, talk about being in denial! Or, at least acute confirmation bias. Doesn’t hard evidence mean anything to you?

          1. More than it does to you, apparently.

  6. Even Hamilton BSs sometimes.

    Look, the Constitutional Comvention came uop with this idea, and he has to write a bunch of tracts trying to sell it, so he has to come up with some plausible-sounding argument why it’s the best way to do things, whether it really is or not. And he has write them up by deadline.

    It’s a tough gig. He’s a talented guy, but in these circumstances even a talented guy is going to make a weak argument every now and then. It’s surprising there isn’t more blather than there is.

  7. If we prohibited government from initiating force it wouldn’t matter who was nominated.

    1. Yes, because in that case we might as well do without.

      1. Force in the defense of rights is not initiating force.

        Force to effect busibody control of peoples lives who are otherwise minding their own business is.

        People go into government to get in the way so they can “acquire” money then coincidentally have an evolved position to get back out of the way.

        This is the core feature of government, and how to get wealthy, worldwide and throughout history.

        The thieves in government then blame the victims when caught, knowing their supporters are starry-eyed with dreams imagined rather than the dirty reality.

        1. Well, yeah, if only force you don’t like is “initiating force”, then sure, I guess.

        2. Force in the defense of rights is not initiating force.

          Force to effect busibody control of peoples lives who are otherwise minding their own business is.

          This is Trotskyesque in it’s redefining of language to make anodyne statements actually tautological endorsements of your PoV.

  8. Confirmation hearings tend to confirm the wisdom of granting the nomination power to the President, as opposed to the Senate.

    It would be great if you could explain why. The fact that nomination hearings get filled with pretty campaign speeches is neither here nor there.

    As for Hamilton’s argument, I utterly fail to see how that wouldn’t equally apply to all other acts of government. Why not put a single man of discernment in charge of the country for four years and do without a Congress entirely?

    1. “As for Hamilton’s argument, I utterly fail to see how that wouldn’t equally apply to all other acts of government. Why not put a single man of discernment in charge of the country for four years and do without a Congress entirely?”

      I mean, Hamilton’s argument really was to put a man of discernment in charge of the country. 🙂

  9. “Alas, such a norm . . . has rarely held sway.”

    Prof. Adler, you can’t just throw this in at the end without some kind of explanation.

    And “rarely?”

    Seems like the has been working pretty decently for a couple hundred years (with the odd exception now and then).

    1. Seems like the system. . . .

  10. Everyone still talks about advice and consent as if it were only consent. The constitution gives the Senate input on the front end as well. Hamilton could be wrong about stuff. In the two years after he wrote the Federalist, he had changed his mind on who had the power to remove cabinet officers. Going from constitutional framer to cabinet member can change one’s perspective.

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