President's Prerogative

Published June 24, 2005

National Review Online

The letter from Senate Democrats urging President Bush to “consult meaningfully with Senators on both sides of the aisle [on judicial nominations] well in advance, especially in the event of a Supreme Court vacancy” is a clever political ploy. This ploy has been abetted by the similar consultation language that the seven Republican signatories to the Gang of 14’s agreement irresponsibly accepted. But no one should take the Democrats’ letter seriously.

The Democrats’ letter asserts that the Constitution requires pre-nomination consultation. As Andy McCarthy has shown at length, that assertion is frivolous. Article II, Section 2 of the Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. It is plain that the phrase “by and with the Advice and Consent of the Senate” modifies “shall appoint,” not “shall nominate.” In other words, the Senate “Advice” that the Constitution contemplates takes place after nomination.

Pre-nomination consultation would, of course, enable the Senate to involve itself in the president’s choice of a nominee. That is exactly what Senate Democrats seek. But as Alexander Hamilton explained the “Advice and Consent” provision in Federalist No. 66:

There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice of the President.

The Democrats’ letter also asserts that “our tradition favors” pre-nomination consultation with opposite-party Senators. But the only example that the letter provides in support of such a tradition is President Clinton’s consultation with Orrin Hatch regarding the two Supreme Court vacancies that arose in 1993 and 1994. Apart from the fact that one should tremble to cite Clinton as a model of presidential conduct to emulate on anything, the Clinton-Hatch example provides a striking contrast to today’s situation.

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal — aimed at individuals whom Republicans disliked or who would create undue political difficulties for them — not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Senate Democrats have amply demonstrated that it would be pointless and counterproductive to confer with them. President Bush has twice been elected on promises to appoint judges who have the jurisprudential views of Justices Scalia and Thomas. Democrats have shown for more than four years that they will resort to unprecedented measures to block such judges. To consult with Democrats before making nominations — especially where the proposed consultation is so amorphous — would only give Democrats more fodder for their cannons. We told you, they will say, that Candidate X would be unacceptable.

There is, simply put, no sound judicial candidate whose nomination Democrats could be expected to pre-clear. As a body, on this matter Senate Democrats have adopted the extreme leftist perspective of Ted Kennedy. They want judicial nominees who will be their political allies, imposing through the courts what the Left cannot achieve through political processes.

Kennedy, it should be remembered, was one of nine Democrats who voted against the confirmation of David Souter to the Supreme Court in 1990. Deploying his full arsenal of clichés, Kennedy thundered that Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy,” had a “particularly troubling” record on civil rights, had made “reactionary arguments” contesting the extent of Congress’s power, “was willing to defend the indefensible” (the use of literacy tests for voting), was not “genuinely concerned about the rights of women,” had “alarming” responses on Roe v. Wade, and threatened “to turn back the clock on the historic progress of recent decades.”

As a justice, Souter has, of course, been far more left-wing than even Kennedy could have hoped for. Any nominee that Democrats would pre-clear would be someone who threatened to be as bad.

President Bush — and everyone else serious about judicial nominations — should ignore the Democrats’ request for pre-nomination consultation.

Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC’s program on the Constitution, the Courts, and the Culture.

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