The Constitutional Convention declared, through Article 2, Section 2, Clause 2 of the Constitution, that “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to nominate . . .Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The appointment of federal jurists is thus a shared power. The process of presidential nomination and Senate advice and consent invites tension between the two branches and encourages political pressure from various groups—political parties, corporations, academics, civil liberties organizations and the press, among others.
The Framers’ preferred method for selecting judges, another exercise in collective decision- making, raises questions about the role and authority of the President and the Senate. While the power of appointment is jointly held, many Presidents have tended to view it as within the province of the executive. President Richard Nixon, for example, observed that a nominee’s constitutional philosophy was an appropriate criterion to be considered as part of the “constitutional responsibility of the President to appoint members of the Court and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or their own subjective judgment for that of the one person entrusted by the Constitution with the power of appointment.”
President Nixon’s view that the Senate should defer to presidential choices, raises an important question that probes the structure and departmental expectations that lie behind the appointment power. If a President may select nominees on the basis of constitutional philosophy or ideology, why should the Senate be precluded from judging for itself the merits of a nominee’s constitutional philosophy or jurisprudential theories? The Senate, in fact, has assumed that it is not merely a rubber stamp for the President’s nominee, and it has exalted constitutional philosophy as a dominant factor in its rejection of some 20 percent of presidential nominations to the Supreme Court. The name of prominent judges have littered the records of unsuccessful nominations: federal appellate court judge John J. Parker in 1930; Justice Abe Fortas, whose nomination to be Chief Justice was filibustered by the Senate in 1968, and the D.C. Circuit Court of Appeals Judge, Robert Bork, defeated in 1987.
The leverage exerted by Senate’s independent role in the appointment process requires the executive to consult with its legislative partner. This is especially true with respect to members of the Senate Judiciary Committee, as well as Senators and perhaps other influential figures in the home state of the nominee, as long as they members of the President’s party. Presidential consultation will Senators from the candidate’s home state must be cultivated, lest they invoke the longstanding principle of “senatorial courtesy,” which will undermine the nominee’s chances for confirmation. That old tradition is based on the expectation of presidential consultation with the home-state Senator. Otherwise, the aggrieved Senator will appeal to colleagues and the Senate will almost certainly defeat the nominee. The tradition, then, virtually guarantees an influential role for Senators in the appointment power.
The Senate’s formal role in the appointment process is extensive. The Senate Judiciary Committee will hold hearings, which may be more or less intense, depending on the credentials, views, background and experience of the nominee. Prior to the hearings, the committee will present the nominee with a questionnaire that probes the qualifications, including a financial disclosure report to provide information of income, assets, and liabilities. The committee, moreover, will receive from the White House, Justice Department and the FBI that are provide insights into the nominee’s personal life and professional career. The committee will not commence its hearings until it has received all of the pertinent information about the judicial candidate. During the course of the proceedings, the Senate will hear testimony from many witnesses, including those supporting and opposing the nominee. The Senate’s work may well be informed by press reports and accounts that illuminate the nominee’s career and qualifications.
Another factor that has played an increasingly important role in the judicial appointment process, is the American Bar Association’s (ABA) 15-member Committee on the Federal Judiciary, particularly since the last months of the Truman Administration. The ABA’s evaluation of nominees has provided good results since its inception in 1946, although it has had its share of critics, some of whom maintain that responsibility for judicial nominations should rest with the executive branch, as outlined in Article 3 of the Constitution. The committee’s work, really a pre-formal nomination review, was valued by Eisenhower, and utilized by subsequent presidents, until President Nixon, upset with the ABA’s disapproval of some of his some of his nominees in 1970-1971, refused to submit names of nominees to the committee until he had selected and publicized them. As a consequence, Presidents, jealous of their authority, and reluctant to suffer criticism of their nominees, refused to give the ABA the authority to block their candidates. In 2001, President George W. Bush informed the ABA that it would no longer receive advance notice of judicial nominees. Unaffected by the disposition of the executive branch, the Senate Judiciary Committee continued to rely on ABA evaluations. In 2009, President Barack Obama revived the practice dating to the Truman Administration, and indicated that he would submit names to the ABA before sending the name of a nominee to the Senate.
The Supreme Court itself has sometimes played an active and influential role in selecting nominees to serve on the nation’s highest bench. Both sitting and retired Justices have exerted influence, particularly the Chief Justice. Chief Justice William Howard Taft, the only person ever to have served as President and Supreme Court Justice in American history, probably played a larger role in this capacity than his colleagues. Taft, who was close to President Warren G. Harding, was influential in the nomination of Pierce Butler in 1922. Harding’s Attorney General, Harry M. Daugherty, declared to Henry Taft (the Chief Justice’s brother), that “the President would not approve anybody for appointment who was not approved by the Chief Justice.” Other Justices—Harlan Fiske Stone, Charles Evans Hughes, the first John Marshall Harlan, Samuel F. Miller, Louis Brandeis and Felix Frankfurter—routinely consulted with Presidents and Attorneys General in choosing nominees.