65 SCALR 1577

(Cite as: 65 S. Cal. L. Rev. 1577)



Southern California Law Review

March, 1992



Gender, Race, And The Politics Of Supreme Court Appointments: The Import Of The

Anita Hill/Clarence Thomas Hearings

The View From And To Congress



*1577 TAKING ADVICE SERIOUSLY: AN IMMODEST PROPOSAL FOR REFORMING THE

CONFIRMATION PROCESS



Glenn Harlan Reynolds [FNa]









Copyright © 1992 by the University of Southern California; Glenn Harlan





Reynolds









Ever since the Bork hearings, at least, there has been a chorus of dissatisfaction with the process of appointing and confirming candidates for the Supreme Court, [FN1] and the Clarence Thomas hearings have added to the clamor. [FN2] Yet there seem to be few grounds for hoping that things will improve, given how conflict-ridden and divisive the process of confirming Supreme Court Justices has become. The source of the conflict is divided government, with the Presidency controlled by one party, the Congress by another, and the Supreme Court sought as an ally by both sides in their struggles. The result is a predictable minuet: the President promises the voters to appoint Justices with a particular agenda, then solemnly assures the Senate that there has been no inquiry into a candidate's views. At the confirmation hearings, the Senate must decide whether to consent to the appointment of a candidate who proclaims an entirely open mind, and who solemnly refuses to answer any questions regarding controversial cases or issues. Witnesses and Senators then attempt to exploit the contradiction between these two approaches, and to discredit the candidate in other ways. The entire enterprise appears to *1578 be an exercise in partisanship, politics, and futility, and few of the participants seem to believe that it is all that it can be.



But, according to Senator Joseph Biden, our confirmation process is like democracy-the worst alternative except for all the others. Is he right? Is the current mess all that we can hope for, within the confines of the Constitution and representative government?



I think that the answer to this question is "no," and that the path to a better solution is contained within the language of the Constitution's Appointment Clause itself. The Appointment Clause provides that the President "by and with the Advice and Consent of the Senate, shall appoint... judges of the Supreme Court." [FN3] What does this mean, "by and with the Advice and Consent of the Senate," and is it much like what we do now? Not at all. Under our current system, appointments are made with the "consent" of the Senate, but not, in any formal way, with its "advice." [FN4] Yet this makes no sense. The Framers assigned the process of judicial selection to political branches when they could have accomplished it some other way-say, by letting the Supreme Court choose its own members-that would have been outside of political control. Presumably, they gave the political branches this power in order to keep the Court from drifting too far away from the political and jurisprudential mainstream by providing a political mechanism for long-term control of the Court's makeup and direction. On the other hand, they provided for the involvement of both political branches, executive and legislative, presumably in order to ensure that the process would not be excessively political in a partisan or ideological sense. This appears to be a carefully crafted approach, and if we are to take the language of the Constitution seriously, we should think about the possibility of giving the "advice" portion of the formula equal dignity with the "consent" portion. There must, after all, be some reason for the Constitution's use of this particular phrase.



As is often the case in matters of constitutional meaning, history is of limited use. According to the leading work on the appointment process, "[t]he exact meaning of the words nominate and advice and consent contained in the section on appointments was not discussed in the brief *1579 debate which took place on the provision in the closing days of the Convention." [FN5] However, we can draw a few conclusions from the language itself. To begin, it seems likely that the term "advice" has some meaning distinct from that of "consent." The two terms are not normally synonyms, and if all that the Framers meant by "advice and consent" was "consent" it would have been easy enough to have used that word in place of the phrase they chose. But they did not do that: they said "advice and consent." The meaning of "consent" is pretty obvious. So what does "advice" mean? Well, advice is normally conceived of as something not binding-we may give advice freely, but it is a gift that the recipient is not obliged to take. This is what makes advice different from, say, a command.



Thus, the text provides that the Senate may advise the President on who should be nominated, but the President should be held under no constitutional duty to follow that advice-though there is perhaps a duty to listen to the advice before nominating anyone. But what kind of advice? Whatever the term "advice" means, it does not mean "senatorial courtesy": traditionally, Presidents have paid a good deal of attention to the opinions of Senators of their own party on the question of judicial appointments, [FN6] but that cannot be what the appointments clause envisions. It says "by and with the Advice and Consent of the Senate," not "by and with the advice and consent of Senators," much less Senators only of the President's own party. The language of the text seems pretty plainly to envision some sort of institutional role for the Senate as a whole, not merely for individual Senators here and there.



If we are to give effect to the advice provision, then, we must create a system that grants the Senate an institutional role in the selection of nominees, but one that does not bind the President's hands. Advice is not binding, and a role for the Senate that prevented a President from choosing the nominee of her choice would be inconsistent with the plain text of the Constitution. Yet not involving the Senate at all is also inconsistent with the text of the Constitution. What we have to do is find a way to involve the Senate, in an advisory way, in the selection of judicial nominees without destroying the President's role in the process.



Doing so shouldn't be hard, and I have a suggestion as to how to go about it, one that I believe will address many of the political problems *1580 accompanying the current confirmation process while remaining true to the Constitution's text. What I recommend is simple, though it would be a significant departure from current practice: I propose that the Senate put together its own list of candidates for each Supreme Court vacancy, and forward that list to the President. [FN7] This list would constitute the "advice" portion of the Senate's constitutional role. The President could then do one of two things-she could select a nominee from the list, who would be presumed competent based on the Senate's earlier screening and would be given approval according to some sort of accelerated procedure (much as in "fast track" trade legislation), [FN8] or she could select someone not on the list, in which case the confirmation process would take place as usual.



Under this process both sides would be encouraged not to be too political in their selections: if the Senate loaded its list with ideologues, the President would ignore it, forcing the Senate to undergo the traditional confirmation process. On the other hand, the President also would be encouraged to avoid ideologues and give the Senate's list serious consideration, and to select from it so long as its candidates were reasonable, in order to escape the agonies of the full-blown Senate confirmation process as it has become. Furthermore, if the President did not select from the list, there would be a basis for comparison, as people (and Senators) could decide whether the President's candidate met the same standards as the members of the Senate's list.



I do not believe that there would be constitutional problems with this approach. The Constitution's text, after all, specifically provides for advice and consent. And the Constitution grants Congress broad power to pass all legislation that is "necessary and proper" not only for executing Congress's own powers, but also for executing "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," [FN9] presumably including the appointment power. Thus, the approach that I have proposed seems entirely *1581 within the powers of Congress as contemplated by the Framers and the text of the Constitution.



But even this question may not be an issue, as the proposal that I have set out could be adopted by the Senate, in the form of a rule, without any need for legislation, and without the President's signature. There is, after all, nothing sacred about the system currently in place-hearings, as engaged in now, were not common before this century, and have become a major part of the process only in the last few decades. [FN10] Such an approach would probably be immune from judicial review as a political question, and would at any rate seem well within the competence of the Senate. [FN11] The Senate, after all, would not be telling the President what to do, only announcing the procedures by which it would respond.



One last objection might be that the system I propose would violate the constitutional scheme of separation of powers. I do not believe that it would. First, it seems to be more consistent with the text of the Constitution than is the system that we have now, and such a direct textual warrant should surely overcome concerns based on a concept-separation of powers-that is not mentioned in the Constitution's text at all but is merely an inference from its overall structure. [FN12] Second, such a system would seem to meet the test announced by the Supreme Court in Morrison v. Olson, [FN13] requiring that a congressional action must not "impermissibly undermine" the power of the Executive Branch nor "disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions." No such undermining or disruption could exist. The President would remain entirely free to proceed in the traditional fashion, with all of its traditional drawbacks; on the other hand, she would also be free to select someone from a list prepared by the Senate, a list that would probably be calculated to contain candidates sufficiently moderate to avoid alienating the President too much. The result, it seems to me, would be a scheme that would avoid the selection of ideologues and the politicization of the selection process, and that would be more faithful to the language of the Constitution to boot. It is arguably more faithful to the intent of the Framers, as well. For while they undoubtedly intended the *1582 process of selection and confirmation by the political branches as a check upon potential judicial tyrants, [FN14] the Framers almost certainly did not intend the process to be as heavily politicized and partisan as it has become.



Having said all this, I am not at all confident that my proposal will be adopted. But if it is not, that may tell us something important. For notwithstanding all the complaints, [FN15] it may be that the process as it now exists suits a lot of people more than they want to admit. Presidents and presidential candidates are able to promise to appoint ideologues of one stripe or another to the Court-and, if they can slip the ideologues past the Senate, to fulfill their promises. Senators are able to posture and curry favor with interest groups on the right and left. And those interest groups themselves are given a potent tool for currying publicity and raising funds. The result is a system that provides no gain for the public, but many gains for various special interests. If we do not depart from the present system, we will know that all the complaints about the process, from both the executive and the legislative branches, amount to so many crocodile tears.



Though recognizing the fact would require more than a modest change in the selection process, the Constitution itself provides for a better way of choosing Justices than the way we are doing it now. If we take its advice provision seriously we can solve the current problems, and leave the public interest better off. If we do not take the advice provision seriously, then the fault is not in the Constitution, but in ourselves, and the problem is not process, but politics.





[FNa]. Associate Professor of Law, University of Tennessee. J.D. Yale Law School, 1985; B.A. University of Tennessee, 1982. I would like to thank Fran Ansley, Larry Dessem, Michael Gerhardt, and Peter Morgan for their comments and suggestions, and Beth Bailey for her usual first-class research assistance. Research was supported by the University of Tennessee's W. W. Davis Faculty Development Fund. And lastly I'd like to thank my Fall 1991 Constitutional Law Class for their comments, suggestions and inspiration.





[FN1]. See, e.g., Symposium, Confirmation Controversy: The Selection of a Supreme Court Justice, 84 NW. U.L. REV. 832 (1990); Stephen L. Carter, The Confirmation Mess, 101 HARV. L. REV. 1185 (1988).





[FN2]. See, e.g., David Lauter & Ronald J. Ostrow, Ways Sought to Improve Confirmation Proceedings, L.A. TIMES, Oct. 17, 1991, at A1; David E. Rosenbaum, The Thomas Confirmation: Selection Process for Court Under Attack from All Sides, N.Y. TIMES, Oct. 17, 1991, at A22.





[FN3]. U.S. CONST. art. II, 2, cl. 2.





[FN4]. As Charles Black says, "Procedurally, the stage of 'advice' has been short-circuited." Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657, 659 (1970) (emphasis omitted). Unlike Black, I do not take this state of events as a given. For discussions of the appointment process and how it works in practice, see JOSEPH HARRIS, THE ADVICE AND CONSENT OF THE SENATE (1968); Overview, Judicial Selection, 1 YALE L. & POL'Y REV. 270 (1983).





[FN5]. HARRIS, supra note 4, at 33 (emphasis in original).





[FN6]. Joseph Harris is rather critical of this custom, perhaps with good reason. HARRIS, supra note 4, at 215-37. There is no warrant for it in the text of the Constitution, and it certainly is not obvious that it has any positive effect on the quality of the nominees.





[FN7]. It is not vital, in this rather brief and preliminary discussion, to lay out how this should be done. However, one way to proceed might be for the Senate Judiciary Committee, in closed proceedings, to consider candidates for a short list, then to make those candidates' names public for comment by interested parties. The entire list could then go to the Senate floor for approval. This is not the only way, or even necessarily the best way, for the Senate to proceed, but should give some flavor of how things might be done.





[FN8]. That is, the nomination would go directly to the Senate floor for debate and an up-or-down vote based on the record already in existence (gathered as part of the list-preparation process) without further hearings, testimony, etc.





[FN9]. U.S. CONST. art. 1, 8, cl. 18.





[FN10]. See generally HARRIS, supra note 4 (describing the evolution of the appointment process).





[FN11]. See generally STANDING RULES OF THE SENATE Rule XXXI (1979) (existing procedure for judicial nominations); cf. Krebs v. Ashbrook, 275 F. Supp. 111, 118 (D.C. 1967) (House and Senate Rules are not "Acts of Congress" requiring bicamerality).





[FN12]. See generally Glenn H. Reynolds, Penumbral Reasoning on the Right, 140 U. PA. L. REV. (forthcoming 1992).





[FN13]. 487 U.S. 654 (1988).





[FN14]. For more on this, see Glenn H. Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, 24 GA. L. REV. 1045, 1099-1103 (1990); see also Glenn Reynolds, Chaos and the Court, 91 COLUM. L. REV. 110, 114 (1991) (discussing the linkage between appointment process and political affairs).





[FN15]. See supra note 2.



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