Duke Law Journal

“Advice and Consent” in Historical Perspective

Abstract

In recent years, commentators have complained about what they regard as an increasingly dysfunctional confirmation process for judges and high-ranking executive officials, and the proper role for the Senate in the confirmation process has been much debated. This Article suggests that confirmations have been contentious throughout American history, and that the focus on ideological issues in today’s confirmation proceedings is not anomalous. Indeed, historically, both Republicans and Democrats have used the confirmation process to delay or oppose nominations when the President hails from a different political party, and, sometimes, even when the President comes from the same party but there are ideological objections to the nominee.

That the appointments process has, at times, been difficult and contentious should come as no great surprise. The Framers of the United States Constitution intentionally created a governmental structure that was more prone to obstructionism than other comparable systems. Relying on concepts like “separation of powers,” and “checks and balances,” the Framers sought to constrain the federal government in ways that would limit the possibilities for governmental abuse. The appointments power reflects this approach. Like many other constitutional powers, it is a shared power. Although the President has the power to nominate Article III judges, as well as ambassadors and “officers,” nominees can only be confirmed with the “advice and consent” of the Senate. By placing the power to appoint in two politically elected entities, the Constitution establishes a system whereby political influences will sometimes have a major impact on the confirmation process.

Although contentiousness can arise during any type of nomination, some Supreme Court nominations have been particularly bitter. Both the Senate and the American public have increasingly become aware that the courts make law and that the political and judicial attitudes of nominees matter. Under such circumstances, the Senate’s inquiry quite naturally goes beyond the simple question of whether a nominee is qualified or unqualified. However, the confirmation process is more difficult today, even for nonjudicial nominees, because of the bitter partisanship that has infected the U.S. political system.