Tuesday, July 20, 2010

What does it mean to provide "Advice and Consent"?

According to the New York Times, Solicitor General Kagen's nomination to the Supreme Court has been backed by the Senate Judiciary Committee. The article reports that only one Republican, Lyndsay Graham of South Carolina, backed her nomination.

Senator Graham didn't exactly given the nominee a ringing endorsement. He said there were "100 reasons" he could vote against her. He did not vote against her because "The Constitution, in my view, puts a requirement on me not to replace my judgment for [the President's]" Is he correct?

Article II, Section 2, Clause 2 of the Constitution says:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court, and all other Officers of the United States....
One would think that providing advice is an exercise in replacing judgment. Merriam-Webster, defining a advice as a recommendation on a course of conduct, certainly seems to think so. On the other hand, perhaps what Senator Graham means is that advice can be freely ignored so his "100 reasons" not to confirm Solicitor General Kagen don't matter and that only election results matter. But if that were true, why does the Constitution require the Senate's consent?

One interesting thing I learned while researching this post is that one of George Washington's nominees to the Supreme Court was struck down on ideological grounds. John Rutledge, lost his seat as Chief Justice on the Supreme Court because the Senate refused to confirm him when Washington's recess appointment expired. The Senate was unhappy about Rutledge's opposition to the Jay Treaty with Great Britain. Apparently, unpopular views as a disqualifying factor for the Supreme Court precedes Robert Bork by a two centuries.

1 comment:

  1. I find it interesting that the same "advice and consent" requirement covers both supreme court justices and "officers" of the United States -- such as a cabinet ministers. Certainly, we think that the president has the right to appoint cabinet minister that share his (or her) ideological preferences. But it doesn't seem like there's qute the same standard at work for supreme court justices. And there's a good reason for a different standard: justices serve for life, and constitute more than 10% of a co-equal branch of the government (while Officers serve at the president's discretion and will be replaced when a new president comes along). But even for supreme court justices, I think the custom is that presidents get to pick someone who reflects their ideology; they just have to pick someone with mainstream credentials.

    In other words, the president's pick should sail through as long as the nominee graduated from either Yale, Harvard, or Stanford law school (particularly if the nominee went to Princeton for undergrad)....


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