Advice and Consent: The Real Issue With Arlen Specter
My problem with Arlen Specter is not his comments about judges who might not support Roe v. Wade, a subject for another day. Rather it is the fact that his approach to the Senate’s “advice and consent” role is to delve into ideology and specific positions a potential judge might take on specific cases, rather than asking the only important question: “Do you promise to uphold the Constitution as it is written?” Neither Specter nor any other Senator who can not answer “Yes” to the same question should chair the Judiciary Committee.
The Senate has taken on a role in the confirmation of judges which was never intended by the Founding Fathers. Both parties have been guilty of this, though the Democrats have been worse, including in abuse of the filibuster. The risk to the country goes far beyond not meeting the Founders’ intent, or even having a shortage of judges; it strikes at the very heart of separation of powers and an independent judiciary.
In the Federalist Papers, #76, written in 1788, Alexander Hamilton addresses this very issue: “In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing.”
Clearly, Hamilton saw the Senate’s appropriate role as very limited. So, in what case should the Senate would not approve a nomination? Hamilton’s answer: “to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” In other words, the Senate’s role is to prevent judicial (and other) appointments made out of nepotism, cronyism, or pure political expediency. The absence of any discussion of ideology is notable.
Unlike the “advice and consent” circus being perpetrated on the country lately, Hamilton thought that the Senate’s “concurrence would [be] in general, a silent operation.” And as for the frequency of turning down nominees, one need only read Hamilton’s prediction to guess how disgusted he would be by the actions of the Senate in recent years: “It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination.”
The words of the Constitution, and the Federalist Papers commentary (among others) by men who were actively involved in the discussion, make it clear that the current behavior of the Senate is far removed from the Founders’ intent.
The President was charged with judicial nomination and appointment for a very specific reason as part of the delicate balance of power woven into our government. It is most important that the people who have the task of writing our laws do not have the authority also to choose the people who will determine the constitutionality of those laws. This thought process, clearly held by most Democrats and too many Republicans, is a direct attack on the Separation of Powers doctrine which has served our nation so well for over two hundred years.
The Democrats and Republicans, while both guilty of these shenanigans, have somewhat different approaches. The Democrats, believe that the Constitution is a “living document”, i.e. that it can mean whatever a judge (or Senator) thinks it should mean. In fact, they need this to be the case in order for most of their big government programs to pass a judicial challenge. From the New Deal to the Great Society to McCain-Feingold, it has been demonstrated that the Democrats/Progressives have been able to affect the judiciary in this way.
A "strict constructionist" or "originalist", i.e. someone who believes that the Constitution actually means what it says, would never uphold those sorts of Federal action without constitutional foundation. Therefore, in order to implement their big government schemes the liberals must believe in a “living” Constitution, something they are astoundingly open about, and must oppose judges who disagree. Liberals must try to pack courts with judges who will rule based on their political views and their “conscience” rather than based on the words of the Constitution.
Republicans are often just the converse of this, but have the advantage of having history and the Founders on their side, not to mention simplicity. Republicans need only support judges who can answer “yes” to the question from above, “Do you promise to uphold the Constitution as it is written?” A “yes” to that is enough to ensure that limited government prevails, because the Constitution was written to enable and preserve limited government.
Although the Republicans should have the moral high ground on the issue, there are two problems here as well. First, they play the same games as the Democrats simply for “payback”, to the detriment of the nation. Second, many Republicans, including Arlen Specter, seem willing to be “open minded” about the meaning of the Constitution, keeping the document from actually meaning anything.
President Bush will probably have opportunity to nominate judges to the Supreme Court. It is far past time to return the judiciary and the process of filling its vacancies to independence from the most political activities of our government. Unless a President nominates a judge out of cronyism or who is insane (which has happened before), Senators should approve him/her, realizing that debate about ideology is simply not their role in offering “advice and consent”.
Republicans should not elevate Specter to the chairmanship of the Judiciary Committee unless he promises to abide by the Constitution. It is not about his position on Roe v. Wade. That’s the symptom, not the disease. The further we get from understanding the Constitution and governing based on its principles, the closer we get to ineffective government at best, and tyranny at worst.
Some links of interest:
Claremont Institute discussion of the issue:
Federalist Papers, #76:
The liberal point of view (Michael Kinsley):
Another liberal point of view (Sen. Schumer demonstrates a complete misunderstanding of the Constitutional role of the Senate):
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