Advise and Politicize

Article Two, Section Two, of the U.S. Constitution dictates that the President of the United States "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . ."  As with lots of other statutory language pertaining to how our government functions, the original Constitutional requirement has been interpreted and applied in different ways over the last 200+ years.

Interestingly, the Advice and Consent clause was treated as something of a formality for the first several presidential administrations, with members of the Senate essentially doing a fact-check on the nominees to the Court to make sure they were sane and not subversives.  The prevailing view was that representative democracy meant that the American voters had the power to choose their president, which gave the president the implied consent of the governed and the authority to choose the Justices on the Court.  Not every justice candidate was just rubber-stamped by the Senate for confirmation, but 20 of the first 25 and 31 of the first 50 nominees to the Supreme Court were actually confirmed by a simple voice vote; from George Washington to Lyndon Johnson, 67 nominees were confirmed in this decidedly polite and bipartisan fashion.

This wasn't a stunning coincidence, nor was it a reflection of a lazy U.S. Senate for our first 175 years or so.  It was because the framers shared a conviction that the Advice and Consent clause existed as a post-nomination function to notify the President that his nominee had been acknowledged, not a pre-nomination function to screen candidates based on their personal philosophies.  Historians concur that key founders -- including George Washington, John Jay, Alexander Hamilton, John Adams and Thomas Jefferson -- were of the understanding that "ideology and jurisprudential 'point of view' were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent."  Rather, rejection of nominees was reserved for true check-and-balance situations in the event that a President tried to pack the Court with political cronies, revolutionaries, mentally unstable individuals, etc.

In fact, the first Supreme Court nominee didn't even appear before a Senate committee to answer questions until 1925, when nominee Harlan Stone volunteered to testify before the Judiciary Committee in order to answer some questions that had arisen about his connections to powerful Wall Street interests.  This committee vetting process was retired for the next five nominees, when Felix Frankfurter was asked to testify in Senate hearings to address rumors that he was a closet communist.

It wasn't until 1955, in the aftermath of the highly controversial Brown v. Board of Education decision that struck down "separate but equal" in 1954, when Supreme Court nominees began to be routinely questioned about their judicial philosophy before the U.S. Senate prior to a vote on their confirmation.  With rare exception, there has been no turning back on this shift in the application of the Advice and Consent clause over the past five decades.

The result of this shift has been to slow down the confirmation proceedings, heat up the political bomb-throwing and further divide up our elected officials into their own little camps of good guys and bad guys.  The proof is in the numbers: After 75 of the first 87 Supreme Court nominees were confirmed by the Senate within a month, just 7 of the last 26 have been confirmed this quickly.  The proof is also in the quality of the discourse: Instead of a legacy of voice votes and bipartisan confirmations, we have recent memories of "Bork" and "Clarence vs. Anita", and have come to expect confirmation votes that are often split sharply along party lines.

Against this backdrop, the conduct of Sen. Lindsey Graham, a Republican from South Carolina, stands out as that of a patriot who put his devotion to his country ahead of his devotion to his political party.  Last year, in spite of the loud and shrill voices inside his party who rejected Sonia Sotomayor because of her purported leftist views, Sen. Graham affirmed her nomination and expressed his personal confidence in her commitment to justice.  Then just last week, Sen. Graham was the only Republican on the Judiciary Committee to set politics aside and cast his vote for confirmation of Elena Kagan -- a nominee who was opposed by Republicans who didn't like her politics or opposed the positions she took in past jobs, not because of her professional qualifications.

These votes were cast by Sen. Graham at great political risk to himself -- one newspaper even reported that his vote last week was viewed as an "apostasy" and ensured that he will face a primary challenge from "Tea Party Republicans" on his right when he runs for re-election in 2014.

In his remarks prior to casting his vote last week, Sen. Graham read from the Federalist Papers to enlighten his colleagues about the Constitutional meaning of the Advice and Consent clause, pointing out that Kagan passed all of the tests envisioned by the framers.  He then challenged those Republicans on the committee with the following fundamental question: "Are we taking the language of the Constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard?"

"Lindsey Graham is all of 5-foot-7 with his shoes on, but these days he towers above his Senate Republican colleagues," wrote columnist Dana Milbank.


Our country needs more elected officials willing to pledge allegiance to the Republic, rather than their political parties or their polling numbers.