Skip navigation

Brandon Bartels writes about Senator Lindsay Graham’s interpretation of the Advise and Consent clause of the Constitution:

Graham’s reasoning for voting yes on Kagan was compelling, and, somewhat ironically, it rests on his constitutional interpretation of the “advice and consent” clause of Article II (the president “shall nominate, and by and with the Advice and Consent of the Senate,…Judges of the supreme court….”). What is the standard by which Supreme Court nominees are to be assessed by the Senate? To what extent does “advice and consent” entail that senators scrutinize a nominee’s ideological preferences or judicial philosophy? According to Graham:

The Constitution, in my view, puts a requirement on me as a senator to not replace my judgment for [the president’s], not to think of the hundred reasons I would pick someone differently or pick a fight with Ms. Kagan. It puts upon me a standard that stood the test of time:  Is the person qualified, is it a person of good character, are they someone that understands the difference between being a judge and a politician? And quite frankly, I think she’s passed all those tests.

Graham is essentially calling for a restoration of a standard from a bygone era. That is, there should be a presumption that a nominee will be confirmed. As long as the person is qualified and has a solid understanding of the law and the issues that come before the Court, that person should be confirmed. Rigorous scrutiny of a nominee’s ideological views and judicial philosophy is outside the realm of “advice and consent,” according to Graham. Elections have consequences, and President Obama is entitled to choose a nominee who agrees with him on various legal issues.

It would take some “smoking gun” for the Senate to reject the president’s nomination. What exactly would constitute such a smoking gun is a question that is worthy of considerable debate. The “extraordinary circumstances” standard was suggested by the “Gang of 14″ a few years back, and some senators still invoke that standard.

The Advise and Consent clause lays down a few basic requirements, but the details are left up to the Senators to hash out. The words of the Constitution certainly do not limit their inquiry in any way; so the Senate can proceed as it likes, so long as they Advise, and Consent. 

What standards, then, should Senators adhere to in hearings? I think Graham’s set is a good start. I particularly like the last requirement – “are they someone that understands the difference between being a judge and a politician?”. It’s imperative in a democracy that the great power given to judges not be misused. Extracting a sort of “oath” from each prospective justice that they will interpret the laws rather than invent new ones is a good idea. It is a fundamental principle. Each and every judge should be questioned as to whether they really understand, and really believe in that principle.  They should be sharply questioned and probed regarding the place of the courts in our system. 

This is very important – without realizing it, courts can subvert our democracy by pretending every political issue is really a legal issue. That has to be avoided at all costs.   

I suppose you could argue that Elena Kagan did not really display a thorough understanding of that last requirement, but she certainly said she did. What both she and Sotomayor said over and over was that they would “follow the law”.

But one has a sneaking suspicion that by “the law” they really meant the liberal decisions of the court;  that they were pledging to follow Roe v. Wade and Planned Parenthood;  Wickard v. Filburn and Bollinger. They were pledging to uphold the prior liberal decisions of the Supreme Court rather than those pesky, pedestrian things enacted by legislatures.

%d bloggers like this: