November 3, 2016
Private: Alexander Hamilton Would Turn Over in His Grave
Geoffrey R. Stone
*This post originally appeared on Crain's Chicago Business.
by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago
In recent days, several leading Republicans, including Sens. Ted Cruz and Richard Burr, have argued that if Hillary Clinton is elected president, Senate Republicans should refuse to confirm any of her nominees to the Supreme Court. The very suggestion of such a strategy threatens to undermine core principles of our constitutional democracy.
The driving motivation for those taking this position has nothing to do with principle. It is about partisan politics, plain and simple. Senate Republicans who refused even to hold hearings on President Obama's nomination of Chief Judge Merrick Garland pretended that the rationale for their stance was the “principle” that a president should not be allowed to appoint a justice in the final year of his term. Although that claim was plainly disingenuous and has no foundation in American history, the advocates of the “no Clinton nominees” position now go even further and insist that the Senate should not confirm any nomination by a president they do not like.
This is entirely about partisan politics. They do not want to see a change in the ideological makeup of the Supreme Court. The problem, though, is that throughout our nation's history the Senate has consistently confirmed Supreme Court nominees even when they are made by a president of the opposite party and even when their confirmation would shift the ideological direction of the court.
Indeed, of the 16 justices who have been confirmed in the last half-century, nine of them substantially altered the ideological balance on the Supreme Court. This includes, among others, Warren Burger for Earl Warren, John Paul Stevens for William Douglas, David Souter for William Brennan and Clarence Thomas for Thurgood Marshall. Interestingly, in eight of these nine confirmations, the new justice was nominated by a Republican president and moved the court significantly to the right. Nonetheless, they were confirmed, often by a Democratically controlled Senate.
From the very founding of our republic, the guiding rule for the Senate's exercise of its advice and consent authority in this context was stated clearly by Alexander Hamilton in the Federalist Papers. “To what purpose,” Hamilton asked, do we “require the co-operation of the Senate?” Answering his own question, Hamilton explained that giving this responsibility to the Senate “would tend greatly to prevent the appointment of unfit characters.”
Because the framers were distrustful of power, they created a government of checks and balances. The president was given the authority to appoint justices to the Supreme Court, but the Senate was given the responsibility of ensuring that those who are appointed are not “unfit characters.”
As our nation has evolved, the meaning of this concept has become clear. The Senate should not confirm a nominee if she is unqualified, if she is unethical, or if her views are outside the mainstream of legal thought. And, indeed, this is precisely the approach the Senate has taken to every well-qualified, ethical and reasonably moderate nominee over the past half-century. Every such nominee, ranging from Lewis Powell to John Paul Stevens to Sandra Day O'Connor to David Souter to Harry Blackmun to Stephen Breyer to John Roberts to Elena Kagan has—without a single exception—been confirmed. This is the well-settled meaning of “advice and consent.”
Those who call for the rejection of any and all Clinton nominees—no matter how well-qualified, how ethical and how mainstream they are in their views—threaten to undermine a core principle of our constitutional democracy. Their position is unprincipled, dishonest and unconscionable.