July 18 in the Constitutional Convention: Judicial Confirmations

The central issue on July 18 was the mode of appointing justices to the Supreme Court. The first motion put to the Convention would have assigned that authority to the Senate alone. Nathaniel Ghorum of Massachusetts thought the accountability of a legislative body would be too diffuse: No one member would feel responsible for a given appointment. He moved that the President appoint judges with the advice and consent of the Senate.

The ensuing debate focused on how to obtain what Luther Martin called “a fit choice.” Some thought appointment by the Senate would avoid the concentrated power involved in a Presidential nomination. Others were worried about, in Ghorum’s words, the “cabal” and “jobbing” that infected legislative bodies because no one member felt accountable for a decision.

These debates do not seem to anticipate the full-on, ideological confirmation wars of today. Rather, they worry about problems like parochialism (Senators, for example, might be too attached to judges from their states). The overall focus is “a proper choice,” as Roger Sherman put it.

One suspects the debates of July 18 would satisfy no one—neither the partisans of presidential discretion nor those who see advice and consent as a substantive power—in today’s confirmation wars. Of course, these are rarely principled positions: They shift based on who occupies the White House. The devotees of deference to the president see the Senate as something like a Human Resources department whose job is limited to checking qualifications and references. Partisans of the Senate see confirmation fights in ideological terms. For them, the power to advise and consent entails an authority for the Senate to say not just whether a judge is qualified but also whether he or she is a “fit choice.”

One could reasonably interpret “fit choice” either way. But it seems to entail meaningful accountability for the President—who will scour the nation for the best judges—and a meaningful check: The Senate is there to prevent what Madison called “any incautious or corrupt nomination by the Executive.”

Perhaps the most significant feature of this debate is that no one said what would make a judicial nomination “fit” or “proper.” There seems to have been enough of a background consensus on the qualities of a good judge that they required no elucidation. What the delegates failed to anticipate, I suspect, is the wide-ranging power of the courts today. If judges wield substantial influence over contentious issues, it is predictable—and, I would argue, reasonable—for confirmations to induce fierce and ideologically charged debates. The best way to take the vinegar out of confirmation battles is to drain the judiciary of excess power that the Framers did not expect judges to have.

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