The Senate’s duty of advice and consent

Does the Senate have to consider the President’s nominee for the Supreme Court? That is the constitutional controversy currently roiling the Capitol. Though the question is new, the debate follows a maddeningly familiar script. Democrats argue that the Senate must consider the President’s nominee, because that is in their interest. Republicans argue that the Senate is not obligated to consider the President’s nominee, because that is in their interest.

If the President were a Republican, we can be certain that the arguments would flip.

We the people have two choices: We can regard the controversy, as they do in Washington, as sport and root for our favorite team. Or we can ignore the Washington game and look to the Constitution. Entertaining as the game might be, our duty as citizens is clear.

So, as it happens, is the Constitution. The framers paid very close attention to the issue of appointments. Their goal, expressed repeatedly throughout the course of the drafting convention in Philadelphia, was to establish a system that would secure the appointment of the “fittest characters” to federal offices. Alexander Hamilton offered a detailed description of the appointment process in The Federalist. The Constitution assigns the power to appoint officers to the President because he would be held accountable for a bad appointment. Were the power to appoint vested in Congress, as some advocated, individual members of Congress could blame their colleagues for the appointment of officers who were incompetent or oppressive. The President, being solely responsible, would be blamed or credited for the conduct of his appointees and thus would have an incentive to appoint the best qualified person.

Hamilton posed, and answered, the obvious question: “To what purpose then require the co-operation of the Senate? … It would be an excellent check on the spirit of favoritism in the President.”

In other words, the role of the Senate is to discourage the President from making partisan or patronage appointments. The power conferred on the Senate is the power to consent to the appointment of fit characters and to prevent the appointment of incompetent or otherwise unfit characters.

There is nothing in this design that supports the claim that the Senate may legitimately use its advice and consent role to prevent the President from making any appointment at all. Indeed, such a senatorial power would undermine the constitutional determination to vest this power in the President.

Whether a particular nominee is fit or not, of course, is a matter of judgment, subject to political spin by the President and the Senate. The framers were well aware of this and expected that the public would ultimately judge the matter. As Hamilton explained, “as there would be a necessity for submitting each nomination to the judgement of an entire branch of the legislature, the circumstances attending an appointment … would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the [S]enate….”

The predicate for the public’s role of assessing the conduct of the President and the Senate is the notoriety that follows from the Senate’s deliberation on the President’s nomination.

When the Constitution was proposed and ratified, one of the leading framers, James Iredell, explained the appointment process to the people of his home state of North Carolina. When the President chooses a nominee, “[t]he Senate has to consider upon it.” No ifs, ands, or buts. The original meaning of the Constitution was well settled.

In Georgia, our senators have declared their intention to toe the party line and refuse to consider the President’s nominee for the Supreme Court. In doing so, they place partisan loyalty above their duty to the Constitution and the people.

This story was originally published April 3, 2016 at 3:03 PM with the headline "The Senate’s duty of advice and consent."