Hamilton 77 & Amendment 28: A Better Way to Choose for SCOTUS

By Benjamin M. Adams, March 20, 2007, @BenAdamsO_O

Who denies that the confirmation process for Supreme Court Justices is not merely broken but grotesquely so? What dignity remains therein for anyone wishing to defend it? The first time I watched confirmation hearings on television came in 1991, when George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. Those confirmation hearings, which took place under the auspices of Judiciary Committee Chairman Joe Biden, taught me exceedingly little about Justice Thomas’ Commerce Clause jurisprudence. I did learn, however, an unexpected amount about his alleged taste in pornography. I note that my disgust at the Thomas hearings does not reflect a belief that Justice Thomas spoke to Ms. Hill appropriately at all times. As her boss, Thomas crossed the line terribly, if the allegations of Ms. Hill are all true. That particular topic ought to be debated, but that inquiry is separate from the question of whether Ms. Hill’s last-minute allegations ought to have disqualified him from serving on the Supreme Court after a lifetime of preparation. Beyond dispute is that a smear campaign took place against Thomas designed to portray him as a sexual deviant, replete with all the dogwhistles from the left that one might imagine.

Still bitter at Democrats from his confirmation mugging, my guess is that Justice Thomas is absolutely certain to retire under a Republican President so as to ensure that he will be replaced with a conservative jurist. I wouldn’t be surprised if a Gorsuch confirmation this spring is closely followed by a Thomas retirement, but that is based almost exclusively on speculation. At the other end of the figurative bench, RBG missed the immensely long window which was open during the Obama years. She eschewed retirement under a liberal president as she approached and then passed the age of 80, rejecting the opportunity to retire strategically, as Thomas surely will. Justice Ginsburg is now looking at a minimum of four more years on the bench, assuming she doesn’t want to see Donald Trump replace her on the Court. One can only assume that the Justice loves her job, even in her 80s, despite the demands of the position. I really do admire her immensely for that.

While the 1991 Hearings were abhorrent, it is my estimation that the bar has moved remarkably lower since that time. When Merrick Garland was nominated in 2016, he was neither smeared nor maligned. Instead, the Senate simply ignored Mr. Garland and ignored their constitutional duty in the process. These are strong words but they are the thesis of this essay: that the Constitution confers upon the Senate the right to reject a nominee for any reason, but also imposes  upon the Senate  a duty to hold hearings and a vote on the nomination. The Senate’s refusal to hold hearings for Mr. Garland, or any other nominee, represents a sound rejection of the Framer’s intended Confirmation process. I will explain why.

Article II of the US Constitution states that the President, “shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court.”

This is a most meager amount of text with which we can work, but we still can glean some clues. First, the Constitution places an affirmative duty to act through the use of the word “shall.” There is no option to not act. The Constitution says that the President and Congress shall. Yes, one might argue by way of syntactical deconstruction, that the word shall only modifies the word nominate and not the words “advice and consent” Correspondingly, one would then argue, that the affirmative duty applies to the President but not to the Congress. Such an interpretation, however, is self-serving formalism– the type that not only misses the clear intent and spirit of the Constitution, but flouts it instead. Indeed, it defies all logic to imagine that the Framers, when delineating the contours of the confirmation process, decided to impose an affirmative duty on the President to nominate a judge while rendering discretionary the role of Congress in this singular process. Such an interpretation turns the entire process on its head. It also turns history on its head, as the most basic inquiry will reveal.

The text itself also suggests that the Framers intended at least some deference to the President. After all, the word “consent” is used. “Advise and Consider” would connote less deference. “Advise and Vote” would connote no deference. Having said that, I am not a rigid textualist when it comes to this type of thing. More to the discreet point, I subscribe to the view that preambles lack specific Constitutional meaning. While preambles are not meaningless, they need to know their place, so to speak. For example, I reject a Second Amendment interpretation in which the “well-regulated militia” tail wags the “right to bear arms” dog. Thus, any deference suggested by the words “advice and consent” is overridden by the agency granted to Senators under the Constitution. Senators are free to ignore the guidance afforded them in the preamble, and they do.

Thus, I hold the view that Senators may base their confirmation votes on litmus tests, or on constituent opinion, or on partisanship, or on any other smart or stupid metric they choose to adopt. I take no position on what guides a Senator’s individual confirmation votes on any given nominee, other than conscience. Senators have every right, as Hamilton says in Federalist 77, to “employ . . . their right of negative upon” any given nomination. The check on potential abuses is that Senators are accountable to voters. That is a foundation of our Constitutional democracy. However, in order for that Constitutional democracy to function properly and as intended, a minimum of hearings and a full Senate vote are required.

Guess who agrees with me. If you picked Alexander Hamilton, the man who authored Federalist 77 and 78 to explain and advocate for the Constitution’s confirmation process, you won. In fact, those two essays remove any doubt as to why the Framers entrusted the Senate with the right to block presidential nominations, which they most certainly did as a way to prevent a President from appointing cronies and incompetents. Here is a key point:

In Federalist 77, Hamilton makes clear his belief that the Senate will act as a responsible check on the President — and can therefore be trusted with the power to reject a nominee — because if the Senate rejects a good nominee, the public will know about it from hearings and will know exactly which Senators voted against confirmation. Hamilton in his own words:

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The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate

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Hamilton is plain as day. If the Senate tries to reject a qualified candidate, they will be exposed by the hearings and individual Senators will be punished at the polls for their votes. For that reason alone, Hamilton believed that the Senate would not abuse its power by unfairly rejecting a qualified nominee. However in 2016, the GOP majority in the Senate wanted to do just that — reject a qualified nominee named Merrick Garland. Hearings and a vote would have exposed his members at the polls, as Hamilton intended. This presented a problem for the Senate Leader, which he “solved” by cravenly disregarding the Constitutional protections elucidated in Hamilton’s 77 — first by neglecting the Senate’s obligation to hold hearings and then by neglecting the Senate’s duty to hold a vote — thereby eliminating the electoral accountability essential to the healthy functioning of our Constitutional democracy.

Thus we can see that the Senate’s refusal to hold hearings and vote on the Garland nomination represents a fundamental and monumental breakdown both of the normal constitutional order as well as the political norms of our democracy. Lest there be any doubt remaining on this point, Federalist 76 further reinforced the notion that the Constitution requires the Senate to act upon presidential nominations and does not anticipate nor allow for the refusal of a branch to take up its Constitutional function. In 76, Hamilton again discusses the split at the Convention between those who wanted the President to have the power to appoint (no Senate confirmation) while others prevailed in favor of a power to nominate with a Senate that can block the nomination. Speaking of those who advocated a system of Presidential appointment — meaning no Congressional consent would be required — Hamilton states:

They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

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This last part is critical. Hamilton is pointing out that the Senate is never going to be able to control the appointment because a President will respond to any Senate rejection by appointing another nominee that he likes. So, Hamilton concludes, the Senate can reject nominees all they want but in the end they will need to confirm SOMEBODY and that somebody will be a person nominated by the President. What is clearly not anticipated in Hamilton’s explication is the idea that the Senate would refuse to confirm ANYONE. As an American patriot, Hamilton could not anticipate Mitch McConnell and the current neo-nihilism of the modern GOP. Hamilton probably could not have anticipated the “nothing matters” public discourse nor could he have imagined the contemporary post-truth political climate. Beyond anything else, and more directly to the point, one suspects that Hamilton could not have imagined a leader as craven and feckless as McConnell. Hamilton certainly would have recognized the great irony in Mitch McConnell willingly subverting the Constitution in order to get a so-called “Constitutionalist” onto the Supreme Court.

In any event, the case is clear — the Senate employs its right of negative upon presidential nominations not by abdication of its responsibility but through the fulfillment thereof — by holding hearings, taking a full vote, and then facing the voters.  Anything less lacks Constitutional legitimacy. Mitch McConnell and the Senate GOP are cynical cowards for their approach. The Democrats have every reason to attempt the same approach that worked for GOP — that is, keep Scalia’s seat open in the hopes of a DEM victory in 2020. Let’s hope they don’t. Gorsuch is a fine jurist and seems from all appearances to be a man of high character as well. He should be confirmed. If Gorsuch is not confirmed, however, it will not be for a lack of hearings. Thus, his denial of the seat would be very tough political payback, but nothing beyond that.

When did it get so bad? You are telling me that it gets much worse?

The nomination of Robert Bork is generally thought of as the moment when the politics of Supreme Court nominations became mostly about politics and less about qualifications and deference to the President. For those who say the process was always rancorous and partisan, I would remind you that Justice Scalia was confirmed 98 to 0. As a consequence,  the words “Advice and Consent” have been stripped of their intended meaning like never before. A venerated tradition of vetting the nominee and weeding out the potentially unqualified has been replaced by continuous smear, abdication of duty, and party-line votes. And yet, things could turn decidedly worse and it is very easy to imagine just exactly how that might happen.

Imagine that a Justice dies or resigns at some point in the near future, while there are still eight members. At that point, we would be looking at a 7 member court. This is where things get interesting, not because there is anything wrong with a 7 member court. (As an odd number, this is obviously better than the current number of 8 Justices.) The interesting part is we all know that Trump could run into serious trouble at any moment. In that case, it is possible that none of his nominees would be confirmed. Thus, the winner of the 2020 election would likely be appointing at least 2 but possibly (in light of the age composition of the existing Court) as many as 3 or 4 justices in a single 4-tear term. This would be a dangerous moment for American democracy for two reasons.

First, the stakes are not supposed to be so high for a single presidential election. Some elections will naturally have high stakes to be sure, but we don’t need or want rules which heighten the stakes unnecessarily through a haphazard process for replacing Justices. The risk in having such high stakes is the increased likelihood that segments of the losing side would either contest the result or become politically alienated. The danger that poses to our democracy should go without saying.

So my experience watching confirmations for 25 years has been to witness a process that has sunk from the ugly to the anti-constitutional. My body of thought about confirmation was baptized in the vulgarity of the 1991 Thomas hearings and died in 2016 at the hands of the Senate of the 114th Congress. The cause of death was the non-experience of witnessing the non-hearings and the non-votes on the Garland nomination. So things are terrible and could get worse. At this point, you are clearly asking if there is any solution to the mess. Funny you should be asking that. I do happen to have one in mind.

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PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

GOVERNING THE REPLACEMENT OF JUSTICES TO THE SUPREME COURT 

1. The number of Supreme Court Justices shall be nine (9).
2. Following each presidential election, the longest tenured Supreme Court Justice (the Senior Justice) shall be replaced. Within 30 days of inauguration, the President shall nominate a new Justice (Nominee) to replace the Senior Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to confirm the Nominee. If the senate votes by 2/3 to reject the Nominee, then the Nominee is removed from the Court immediately. The president shall then nominate a new Nominee who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
3. In the event of the death or retirement of Justice during* the President’s term, then the President shall choose an Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate a new Justice (Nominee) to replace the Interim Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to reject the Nominee. If the senate votes by 2/3 to reject the nominee, then the president shall nominate a new Justice (Nominee) who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
4. In the event of a second death or retirement of Justice during the President’s term, then the President shall choose a Second Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate two (2) new Justices (Nominees) to replace the Interim Justice.
5. In the event of additional deaths and/or retirements, then the President shall appoint additional Interim Justices and each new President shall appoint two (2) new Justices until all interim justices have been replaced. Once all Interim Justices have been replaced, then following the next Inauguration the new President shall replace the Senior Justice.

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That is the my proposal, in toto. These five (5) paragraphs can fix the dysfunctional mess masquerading as America’s SCOTUS confirmation process. The precise wording may change a bit, but the basic mechanics are unassailable. Of course, I invite people to assail it with vigor. In advance, let me briefly unpack and describe the major features of the Amendment:

First, a President appoints one and only one permanent Supreme Court Justice per term. The nation will be spared from the hit-or-miss randomness of some Presidents getting no nominations in a term while others could get two or more picks in a single term. Moreover, the President’s SCOTUS powers should not rise and fall as a salient issue in Presidential elections based on the likelihood of an opportunity to nominate, especially since these opportunities often turn on unforeseeable occurrences. Under the new system, every POTUS will get a single nomination during their Term. Therefore, the issue of SCOTUS will always be salient to a campaign, as it should be, without reaching today’s fever-pitch. Equally important is that on the rare occasion when a President will be allowed to nominate two Justices in a term, the electorate knows this in advance of the election. This will lead to an increase in the public’s understanding of how and when a Presidential election could influence judicial outcomes. For example, one could take all 5-4 decisions in which the senior judge (who will be retiring) is in the majority, and you have the complete set of cases that could potentially be reversed after a new president is elected.

Some people believe that ending lifetime appointments of SCOTUS Justices would be a drastic step. Hamilton, in Federalist 78, argues that giving judges tenure is the best way to protect the independence of the judiciary. He is probably correct in that. On the other hand, the decreased capacities that come with age make increased turnover on SCOTUS an obvious benefit, provided the Court is still protected from interference from the other branches. This proposal does not really engage that debate. Under the proposed amendment, Justices will serve for a really, really long time. Each Justice will start as the junior member and can serve until they have served as the senior members for 4 years (or even longer in the event of an early retirement). So in theory, you would be replacing the Senior Justice each term which means an entirely new court every 36 years. A nominee who is 49 years old can serve on the Court, at least until he is 85, and perhaps longer. Merrick Garland could serve at least until the age of 99. Keep in mind only two Justices in our entire history have served that long. So the amendment doesn’t in any meaningful way curtail the important tradition of giving tenure to Justices. Moreover, when thinking about lifetime appointments, we ought to imagine a time in the future when people may live as long as 200 years. Do we want a President to pick a justice who will serve for 160 years?  Lifetime appointments are already anachronistic and will only become more so over time. There is thus no early retirement and no meaningful limit on lifetime tenure. It simply creates an organized and more balanced system for replacing Justices.

Reduced Powers of the Senate.  To be sure, the Senate will have slightly less power over SCOTUS, but there are reasons not to lament this. First, the Senate has increasingly misused and abused the weighty confirmation power originally conferred to it under the Constitution. Second, the reduction in power is minimal. Any unqualified and disqualified candidate would surely find 2/3 in opposition. Third, at the end of any confirmation process, there is a guarantee of another Nominee in less than four years. So for a given political party that opposes the  Nominee, the focus is shifted from obstructing a Nominee to winning the next election– as it rightly should be. This restores us to the prior balance where the popular will is supposed to dictate the composition, over time and indirectly, through a presidential election every four years. Final note is that the Senate is 100 Members and only requires 67 to defeat a nominee. To the extent the Senate remains united across Party line, the Senate still has total control over a nominee’s fate. To the extent that the Senate allows itself to be fractured across partisan lines, it will cede some power to the Presidency. Again, none of this seems lamentable.

Resignation & Death One interesting feature of the new system is that a Justice who wants to retire strategically simply cannot do so. A retiring Justice will simply give the next undetermined president the opportunity to replace them. Moreover, the entire motivation for strategic retirement ends since the ideological composition of the Court will be henceforth determined by elections. In other words, the amendment assures that each time a conservative president is elected, there will (likely) be a conservative justice nominated and that each time a liberal president is elected, there will (likely) be a liberal justice nominated. Eliminating strategic retirements is a minor benefit but part of a major package of benefits, so to speak. Additionally, one imagines that future Presidents will continue the trend of appointing younger Justices who will serve on the Court for many years. A Justice confirmed to the Court in their 40’s could spend the full 36 years on the Court. Of course, many Justices will not be willing or able to serve that long while a few will serve longer. On balance, it is very likely that Interim Justices will be appointed from time to time. That will create some “two-judge” presidential elections. Of course, every time an Interim Justice is appointed it does not mean the next election will always be “two-judge” since the senior justice who was scheduled to be replaced but “bumped ” by a retiring or dying judge, will simply hang on an extra four years such that a two judge election will not happen. The salient feature, however, is that the public knows in advance whenever the next President will be allowed to nominate two Justices.

Enacting a Constitutional amendment is a task rendered exceedingly difficult by the framers. However, the likelihood of successfully passing an Amendment has clearly increased as information and political action have themselves become increasingly coordinated via digital networks. There is no doubt that political forces can mobilize and coordinate better now than at any time in U.S. history. One hopes this will lead to improved governmental institutions that better serve Americans. Along those lines, the Amendment described above eliminates the current SCOTUS confirmation process, which produces some of the most abhorrent scenes in American political theatre, and replaces it with a vastly better system which continues to respect separation of powers and the value of an independent judiciary.