Alexander Hamilton and Supreme Court Nominations: Opinion #3
Continuing the series of articles being written on Alexander Hamilton and the Senate’s role in Supreme Court confirmations, the AHA! blog shares an article by Jeffery Peters, a writer and political consultant, who writes in Business Superstar:
With the Supreme Court hearing cases on immigration, mandatory union fees, and costly EPA regulations, the decision to replace Justice Antonin Scalia is one of the most important economic considerations today. The wrong nomination could easily change the course of our recovery and make it almost impossible conduct business.
As expected, there is much fighting and drama surrounding the process to determine his successor, but it is surprising that no one has mentioned Alexander Hamilton's view on the Senate's role in the appointment process. Justice Scalia loved turning to The Federalist Papers to determine what our Founders thought.
Hamilton's “Federalist Paper 76” describes the necessity of a “balance of powers” and explains why the Senate has a role in the President's appointment process. He begins by describing why the nomination aspect of the appointment process cannot be left to the will of a large body alone: “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.”
Instead of focusing on the merits of an individual, parties would make deals to get their own favorites approved: “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... 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.”
A large group deciding on nominations would need to compromise its integrity to gain enough votes to pass a candidate, and Hamilton repeatedly stresses that virtue, not party, is the only consideration that matters in approving a nominee.
It is for this reason that Hamilton stated the President is allowed only to nominate an individual: “But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided.”
In an ideal situation, the President would nominate someone of virtue and character that everyone can accept. “But might not his nomination be overruled?" Hamilton opined. "I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled.”
If the Senate rejects all of the President's candidates, then that is a risk if they aren't justified in their action: “They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.”
The ultimate and complete ability to refuse any and all nominations by the President is necessary for a sound government, as Hamilton argues, “To what purpose then require the co-operation of the Senate? I 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 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.”
Hamilton believed that the natural inclination to craft a legacy would lead the President to carefully consider his appointments, and a poor nomination would be severely damaging to his reputation: “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.”
Beyond legacy and reputation, there are also immediate political considerations: “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.”
When Hamilton drafted The Federalist Papers, Presidents were not bound to only two terms. With the final years of the second term no longer spent worrying about a continued political existence, the only time serves to limit a President. This alteration both adds and takes away from the likelihood of a corrupt choice: the President is not restricted by a need for popularity in who he chooses, but it is even more likely that no nomination of his is accepted.
Additionally, Senators were appointed by the individual states during Hamilton's life, and they were not elected until later. The Senate, in slowly shifting in membership to reflect popular opinion, is bound to serve the will of the people if party leaders wish to retain control. Thus, the check against a corrupted President was removed and added as a check against a corrupt Senate.
As such, the Senate is more bound to serve the will of the people during a President's final term than the President. They, and they alone, have a mandate by the people to do the people's will, and the President can no longer claim to be champion of the common man to whom he is no longer beholden.
In “Federalist Paper 77,” Hamilton points out that “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 Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.”
The pertinent issue now is if the President will nominate an individual with strong character and virtue without consideration for political leanings. With Justice Scalia's passing, not only is a staunch conservative voice is now missing from the court, but we also lost one of the greatest legal minds in our history.
Any nominee that can't practically quote at will from The Federalist Papers, Tucker's Commentaries, Rawle's View, or Story's Commentaries lacks the intellect necessary to match Justice Scalia's. He was an expert on jurisprudence and morality, and he could explain the philosophical underpinnings to every aspect of American law. Even replacing him with a token conservative who lacks his expertise is to do a disservice to the position.
Right now, the decision on who can replace Justice Scalia is more important than even who the next President will be. Partisan ideology should not be a consideration by the President, the Senate, or the voters, but the people should demand the utmost scrutiny. It is unfortunate that the Supreme Court has transformed into an ideological tool, but there has been the rare nominee who was chosen for character over ideological considerations.
If the President nominates someone who has a strong understanding of the Constitution and knows the words and intent of the Founding Fathers like Justice Scalia, then the Senate should approve that person. However, if the President submits the names of friends or those who lack such an understanding, which is true of all of the names suggested so far, then the Senate is obligated to do whatever it can to ensure that these lesser people do not make it onto the Supreme Court.
Hamilton argues that the Senate has the full power to serve as obstructionists, but he also recognizes that such actions are a gamble. Without such powers, there would be no check upon the power of the President to ensure that the best pick, an individual of character and virtue, will be made instead of one based only on partisan politics.
For the sake of the liberties of our citizens and a sound economy, either the President must nominate someone who is of peerless character and has a strong understanding that can match Justice Scalia, or the Senate must do whatever it can to prevent a nominee to be considered until a new President is chosen. [See article source]