Selecting Supreme Court Justices
John Maltese: At the Supreme Court level, the balance of power between the president and the Senate has ebbed and flowed. Historically, presidents have been weaker when they are unelected, in their terminal year in office, or face a Senate controlled by the opposition party.
If one looks just at the numbers, there were 20 failed Supreme Court nominations in the 19th century and only six in the 20th century. Why? One could argue that in the 19th century the Senate was relatively unaccountable for its actions and thus more powerful. Two factors led to that unaccountability. First, senators were not popularly elected but were chosen by state legislatures. This undermined the threat of electoral retaliation against senators. Second, Senate consideration of Supreme Court nominees took place in almost absolute secrecy. There were no public hearings on nominees, floor debate usually took place in executive session, and there were seldom roll call votes on nominees. Thus, even if the public could retaliate, it often did not know whom to retaliate against.
All of this changed in the 20th century. The 1913 passage of the Seventeenth Amendment to the Constitution provided for the direct election of senators, and Senate rules changes in 1929 opened floor debate on nominations. Likewise, the Senate Judiciary Committee began to open its hearings to the public on a regular basis. These changes made the Senate more accountable to public opinion and, therefore, increased the power of interest groups in the process. Had it not been for the threat of electoral retaliation, the nomination of Louis Brandeis in 1916 might have been defeated.
The 20th century also brought the rise of the modern presidency and the development of institutional staff units to further presidential policy. Presidents began to speak out about nominees and use their offices of communications, congressional liaison, and public liaison to win support for their nominees. All of this suggests a shift in the balance of power from the Senate to the president, although one might also argue that the balance of power really shifted away from both the Senate and the president - to interest groups.
Mark Moller: I find it interesting that the Constitution deeds to the Senate nearly unilateral authority to regulate the balance of power between the political branches over the appointment process. It does this by virtue of Article I, Section 5, which gives each house of Congress unqualified power to set rules regulating how its "consent" is given legal effect. That's how the Senate derives its power to change committee structure, for example. And it gives the Senate—and the Senate alone—almost unilateral authority to dictate how many hurdles the president must jump to get judges confirmed.
The Rules Power is central to the debate over filibustering judges. Filibusters are a tactic that forces a supermajority vote to confirm a president's court pick. They're controversial. From time to time, Republicans and Democrats even claim they're unconstitutional, depending on whose ox is being gored. This argument is, however, very weak. There's simply nothing in the Constitution that qualifies the breadth of the Rules Power in this way, and the filibuster is of very old vintage.
The real question is whether a transient group of Senators can "entrench" the filibuster—and therefore entrench the hurdles that presidents face in the appointment process. Consider for example, the Senate's current Rule 22. It mandates that two-thirds of any Senate must agree before the filibuster device is removed from the available parliamentary tactics. Some, however, say the Rule can be revisited by a simple majority after each new election. In a 1997 law review article, Erwin Chemerinsky and Catherine Fisk argued that while the filibuster isn't unconstitutional, attempts by one Senate to immunize the filibuster procedure from revision in a future session of Congress, by a majority of future Senators, is. It's inherent in a democratic system, they argued, that each new Congress possesses just as much power as the last. Therefore, an old expired Congress can't put its dead hand on today's living Congress. Instead, each new popular election resets the clock, giving a new legislature a chance to revisit past agreements on how to internally distribute members' voting rights.
Timothy Johnson & Jason Roberts: As John Maltese noted, the 19th and 20th centuries are quite different with regard to rate of rejection of judicial nominees by the Senate. Part of this may be better anticipation by the president, rather than a shift in the balance of power. However, it does seem that the process has changed fundamentally in the wake of the Bork nomination. Presidents seem less willing to make risky nominations. Souter, Breyer, Ginsburg were all considered moderate and non-controversial, and all had bipartisan support in the Senate. Bush I and Clinton did not have to expend much capital on behalf of their nominees (though Bush had to do so on Thomas) and seem to have chosen nominees whom they wouldn't need to sell. This indicates a shift in power towards the Senate, but in most instances senators, too, are not eager for a protracted nomination battle. Public opinion polling during the Bork and Thomas hearings suggested that the public generally disapproved of the contentious nature of the hearings. Our view is that post-Bork, both the Senate and presidents have sought to avoid battles over Supreme Court nominees. However, it seems unlikely that this "truce" will hold, should the current President Bush be given the opportunity to nominate a new justice. President Bush has stated that he will spend his political capital, and Senate Democrats have given no indication that they will back down on judicial nominees.
Michael Gerhardt: This question about the balance of power on judicial nominations implies that the Constitution established a stable distribution of powers with respect to appointments. I am not sure that it did. The Appointments Clause invites both conflict and accommodation over judicial selection. Several factors influence which exists at any particular moment.
The first is political parties. The pressures for presidents to pick nominees from within their parties were especially strong in the 19th century. The costs of presidents' bucking their parties were often severe. In the 19th century, presidents appointed only three judges outside their own parties; in the 20th century eight presidents appointed 11 Supreme Court justices who were not members of their political parties. In some cases, party affiliation gave way to nominees' "real politics," while in other cases a majority within the Senate disposed to oppose or resist presidential dominance of the process encouraged presidents to compromise.
A second factor is the remarkable expansion of the federal government. As the range of responsibilities for the national government has grown, Congress has created more offices requiring presidential nomination and Senate confirmation. A similar pattern holds with respect to judicial appointments. As the scope of judicial review has expanded, so too have the number of judicial offices. The greater number of offices increases the bargaining chips that senators have to negotiate with presidents on appointments and other matters.
Two other changes have helped to influence the dynamics of judicial selection—the increase in interest group participation and media coverage of the process. Both of these developments have shaped public opinion about the process, though most polling shows that the general public has little interest in, or awareness of, confirmation contests over judicial nominations.
Senate rules also changed in important ways in the 20th century, including the entrenchment of the filibuster. The Constitution does not prohibit the Senate from entrenching its rules. To the contrary, it empowers each house to adopt rules for its respective proceedings. The entrenchment of the filibuster is one such rule. The Senate is a continuing body, and thus it is unclear which senators are injured by the entrenchment of the filibuster. The Senate is not comparable to other legislative bodies, including the House where all of its members have either been elected or re-elected to begin new terms. Staggered election of senators precludes the possibility of a new majority being sworn into office at the outset of a new congressional session. Within the Senate, there can only be a "new" majority if one were to take into account some combination of the members carrying over their terms with those being sworn into new terms. The problem is that the case against the filibuster depends on the need to vindicate the "rights" of new members to vote on Senate rules, not of those continuing their terms. Finally, there are no precedents for a majority's entitlement to change the rules in the Senate. In a Rules Committee hearing in 2003, the Republicans' own witnesses testified there were no precedents for the "nuclear option." It is unprecedented, and the Senate has never amended its rules without following its rules.
