Advise and Consent: How the Supreme Court Nomination Process Protects the Republic

The Presidents "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..." U.S. Const. art. 2 § 2, cl. 2.

The retirement of Justice Anthony Kennedy from the Supreme Court has presented an opportunity for President Trump to fill the seat with an originalist faithful to the text of the Constitution. The appointment of a new justice occurs in three stages: presidential selection of a nominee, review by the Senate Judiciary Committee, and finally approval or rejection by the Senate. The separation of powers of which the nomination process was instituted by the Founders in order to correct the defects of monarchy, aristocracy, and democracy. This institutional practice ensures limited yet energetic government has served America well and should not be abandoned.

The Senate appointment process displays the separation of powers and the intention of the Framers to have a limited yet energetic and responsible executive. The President has the plenary power to nominate while the authority to reject or confirm his nomination rests with the Senate.

This process achieves several things. First, it leaves the power to nominate solely with the executive, ensuring his culpability for the nominee. Second, the public nomination works to ensure capable and qualified men are selected lest the executive lose the respect of the public. Third, the approbation or disapprobation of the Senate acts as a structural bulwark against tyranny.  The dignity of the Senate and the character of individual Senators is at stake when the approve nominees. Fourth, any abuse of the system on either side may eventually be corrected through the elective process. Finally, the nomination process crafted by the Framers avoids the evils of vesting the appointment of officers in the executive, which would lean towards tyranny; and vesting the power in either or both houses of Congress, where it would result in intrigue, coalitions, and distraction from the duties of the office.

This would bring into question the motives of either house. The separation of powers instituted in the selection by the executive and the advice and consent of the Senate has served America well and proved a bulwark against both tyranny and corruption, abuse of patronage, and excessive distraction for Congress. It should be maintained as it is.

Historically, two concerns have predominated in the selection of a nominee. The first issue is the professional qualifications of the candidates. The chief concern on this point will be the nominee’s methodology for interpreting the Constitution. There are two schools of thought for interpreting the Constitution. The first school contends the Constitution is a living document that must expand with the needs of the time. The other methodology is originalism, which adheres to the text of the Constitution and the intent of the Framers. These divergent methodologies result in different readings of the Constitution and therefore different rulings from the bench. The judicial philosophy of the next Supreme Court justice will be under intense scrutiny in addition to his career, scholarship, and activities outside the Court.

The second is whether the nomination will serve the President’s political concerns.  The political ramifications of a Supreme Court nomination motivated high voter turnout for Trump. A high number of voters supported him because of his promise to elect a strict constitutionalist to the Supreme Court. Putting another originalist on the Supreme Court could lead to higher voter turnout for Republicans in the midterms.

Presidents typically consult party leaders, home state Senators of their party due to the power of the blue slip process, and outsiders. The White House had a solid list of 25 potential nominees Trump stated he would choose from. The list and the potential to motivate voters in the midterms likely contributed to a quick nomination. Justice Kennedy announced his retirement on June 27, and on July 9 President Trump gave a televised address announcing his selection of Brett Kavanaugh.

Senate Judiciary Committee:

Before consideration by the whole Senate, the Senate Judiciary Committee has the important role of investigating the background and qualifications of the nominee.The current Judiciary Committee process has three stages: (1) an investigative stage, (2) public hearings, and (3) a recommendation to the full Senate.

Once a nominee is selected by the Executive, the Judiciary Committee begins its investigation. Part of the process includes the issuance and answering of a lengthy questionnaire. The Committee will also investigate the background and previous activities of the nominee. During this time the nominee typically performs courtesy calls upon individual Senators. Finally, it has been recent practice for the American Bar Association’s Standing Committee on the Federal Judiciary to issue an evaluation. The impartiality of the ABA Committee has in recent years been questioned.

Nominations since 1949 have received public confirmation hearings. Members of the Committee give statements, the nominee is typically introduced by presenters, and the nominee himself gives a statement. Then follows the business of the hearing.

Several rounds of hearings may occur. Senators often question candidates regarding their private associations, background, court rulings, and public statements. Once questioned by the committee the public witnesses may testify about the nominee. Since 1992, the Judiciary Committee has also conducted a closed door session. This is done to address anything brought up by private investigations regarding any sensitive work done for the federal government.

Once the Judiciary Committee has made its decision it reports the nominee to the whole Senate. It may report the nominee favorably, negatively, or without a recommendation. If reported favorably several levels of support may be given such as unanimous support or party-line support. Upon being reported to the Senate the nominee is then voted upon by that body.

Senate Vote:

Once the Senate Judiciary Committee has reported a nominee it is placed on the Executive Calendar and considered during an executive session. The Senate may move to executive session to consider a nominee either through a unanimous consent agreement or a motion. A unanimous consent agreement may be to proceed immediately to the vote or set a specific time, it may also include a time limit on debate. A motion for the Senate to proceed to executive session may be made in legislative session. It is not debatable under Senate rules but the nomination itself is debatable once the Senate is in executive session.

When the debate begins Senators are free to question the nominee. They may take the floor to state their reasons for voting for or against the candidate. They may focus on professional qualifications, character, judicial philosophy, previous rulings, or stance on constitutional issues among others. In order to end debate the Senate must vote to do so.

Previously, Senate rules allowed filibustering of a nominee. In order to end debate a cloture vote was required; three-fifths of the Senate (60 Senators) had to vote for it. However, the Senate changed this requirement in April 2017 when it lowered the vote necessary to end debate to 51 votes. The precedent for this was set in 2013 when Democratic Senate Majority Leader Harry Reid instituted the nuclear option when the number necessary to end debated was lowered from 60 to 51 votes. Their decision provided the precedent for Senator McConnell to use the nuclear option to appoint Neil Gorsuch to the Supreme Court. Once a cloture motion has passed further debate is limited to 30 hours.

Once the debate has ended the Senate proceeds to vote. In order to be nominated it merely requires a majority vote to confirm the nominee to a lifetime appointment to the Supreme Court.

The nomination of Supreme Court Justices has become increasingly vitriolic due to differences in interpreting the Constitution. For originalists, strict fidelity to the Constitution would greatly limit the vast power of the current Federal Government. For liberals, who have been able to force changes to the law through the bench rather than through the political process, the appointment of an originalist threatens the work of decades. Brett Kavanaugh ruled against the administrative state in PHH v. CFPB because of unconstitutional aspects of the CFPB’s structure and operations. Republicans should hope he continues to rule against the administrative state and for the Constitution, liberty, and the rule of law. While the Supreme Court cannot be a panacea to the ills facing America, the selection of another originalist would be a step towards fidelity to the Constitution.