How broadly should the Senate interpret its role in providing "advice and consent" to the president on Supreme Court nominations? That issue will be at the center of the coming debate over the nomination of U.S. Appeals Court Judge Robert H. Bork to the Supreme Court. During the 1970 debate preceding the Senate's rejection of the nomination of G. Harrold Carswell to the court, a Yale Law Journal article, from which the following is extracted, drew much attention.
IF A PRESIDENT should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate. Few constitutional questions are then of more moment that the question whether a senator properly may, or even at some times in duty must, vote against a nominee to that court, on the ground that the nominee holds views that, when transposed into judicial decisions, are likely, in the senator s judgment, to be very bad for the country. It is the purpose of this piece to open discussion of this question.
It has been a very long time since anybody who thought about the subject to any effect has been possessed by the illusion that a judge's judicial work is not influenced and formed by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or vague, of where justice lies in respect of the great questions of his time. The contention that these factors may not properly be considered by the senator, therefore, amounts to the contention that some things that make a good or bad judge may be considered -- unless the senator is to consider nothing -- while others may not. These same considerations certainly, notoriously, play a large, often a crucial, role in the president s choice of his nominee; the assertion, therefore, that they should play no part in the senator s decision amounts to an assertion that the authority that must "advise and consent" to a nomination ought not to be guided by considerations that are hugely important in the making of the nomination.
I have called this a constitutional question (though it could never reach a court), for it is a question about the allocation of power and responsibility in government. It is natural, then, for American lawyers to look first at the applicable text, In 1970 Charles Black was a professor at Yale Law School. He is now adjunct professor of law at Columbia Law School. This article is excerpted from Vol. 79 of the Yale Law Journal (1970). for what light it may cast. What expectation seems to be projected by the words, "The President. . . shall nominate, and by and with the Advice and Consent of the Senate shall appoint. . . Judges of the Supreme Court. . . "? Do these words suggest a rubber-stamp function, confined to screening out proven malefactors? I submit that they do not. I submit that the word "advice," unless its meaning has radically changed since 1787, makes next to impossible that conclusion.
He who merely consents might do so perfunctorily. He who advises gives or withholds his advice on the basis of all the relevant considerations bearing on decision. Can you conceive of sound "advice" that is given by an advisor who has deliberately barred himself from considering some of the things that the person he is advising ought to consider, and does consider? Is there something, then, in the whole structure of the situation, something unwritten, that makes it the duty of a senator to vote for a man whose views on great questions the senator believes to make him dangerous as a judge? I think there is not, and I believe I can best make my point by a contrast. The Senate has to confirm -- advise and consent to -- nominations to posts in the executive department, including cabinet posts. Here, I think, there is a clear structural reason for a senator's letting the president have pretty much anybody he wants. These are his people; they are to work with him. Wisdom and fairness would give him great latitude, if strict constitutional obligation would not.
Just exactly the reverse is true of the judiciary. The judges are not the president's people. God forbid! They are not to work with him or for him. They are to be as independent of him as they are of the Senate, neither more nor less. Insofar as their policy orientations are material -- and, as I have said above, these can no longer be regarded as immaterial by anybody who wants to be taken seriously -- it is just as important that the Senate think them not harmful as that the president think them not harmful. If this is not true, why is it not? I confess here I cannot so much as anticipate a rational argument to which to address a rebuttal.
I can, however, offer one further argument tending in the same direction. The Supreme Court is a body of great power. Once on the court, a justice wields that power without democratic check. This is as it should be. But is it not wise, before that power is put in his hands for life, that a nominee be screened by the democracy in the fullest manner possible, rather than in the narrowest manner possible, under the Constitution? He is appointed by the president (when the president is acting at his best) because the president believes his world-view will be good for the country, as reflected in his judicial performance. The Constitution certainly permits, if it does not compel, the taking of a second opinion on this crucial question, from a body just as responsible to the electorate, and just as close to the electorate, as is the president. Is it not wisdom to take that second opinion in all fullness of scope?
Is there anything definite in history tending in the contrary direction? In the Constitutional Covention, there was much support for appointment of judges by the Senate alone -- a mode that was approved on July 21, 1787. The change to the present mode was agreed to nem. con.(without dissent) on Sept. 7. This last vote must have meant that those who wanted appointment by the Senate alone -- and in some cases by the whole Congress -- were satisfied that a compromise had been reached, and did not think the legislative part in the process had been reduced to the minimum.
Nor can I see in "The Federalist Papers" any hint that the senators may not or ought not, in voting on a nominee, take into account anything that they, as serious and public-spirited men, think to bear on the wisdom of the appointment. It is predicted, as a mere probability, that presidential nominations will not often be "overruled." But "special and strong reasons," thus generally characterized, are to suffice. Is a senator's belief that a nominee holds skewed and purblind views on social justice not a "special and strong reason"? If there is anything in "The Federalist Papers" neutralizing this inference, I should be glad to see it.
When we turn to history, the record is, as always, confusing and multifarious. one can say with confidence, however, that a good many nominations have been rejected by the Senate for repugnancy of the nominee's views on great issues, or for mediocrity, or for other reasons no more involving moral turpitude than these. I am not writing about the wisdom, on the merits, of particular votes, but of the claim of historical authenticity of the supposed "tradition" of the senators' refraining from taking into account a very wide range of factors, from which the nominees' views on great public questions cannot, except arbitrarily, be excluded. Such a "tradition," if it exists, exists somewhere else than in recorded history. Of course, all these instances may be dismissed as improprieties, but then one must go on and say when it is improper for the Senate, and each senator, to ask himself, before he votes, every question that heavily bears on the issue whether the nominee's sitting on the court will be good for the country.