Advice and Consent

The Senate Judiciary Committee has voted, 13 to 6, to approve Judge Sonia Sotomayor's nomination to be a justice of the Supreme Court. Next week, the full U.S. Senate will vote, confirming her, or not, as the nation's first Hispanic Supreme Court justice.

Today's 13-to-6 vote came mostly along party lines. All of the Democratic senators on the committee voted to approve Judge Sotomayor's nomination. They were joined by one Republican, Lindsey Graham of South Carolina.

Meanwhile, we're here to provide context on the confirmation process itself--specifically, on the Senate's constitutional power to give its "advice and consent."

All Politics?

Political commentators often claim that, once upon a time, Senate confirmation hearings were less partisan than they are today. That tale is only partly true. It is true that, in its entire history, the Senate has rejected only 15 of more than 700 Cabinet nominees and approved about 80 percent of all Supreme Court nominees.

It's also true, however, that the Senate has always guarded its constitutional right to provide "advice and consent" on important appointments. And it's never been afraid to wield that right as a political weapon.

All in Favor?

Article II of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for."

This has come to mean that the executive branch submits some 2,000 civilian appointments, and more than 30,000 military ones, for Senate confirmation every year. The Senate routinely confirms nearly all of these.

When confirmation hearings do get heated, someone always says the Senate shouldn't stick its nose into executive branch business, implying that "advice and consent" is mere formality--and resurrecting a debate that goes clear back to the Constitutional Convention.

There were those like Benjamin Franklin, who worried, "The Executive will always be increasing, here as elsewhere, til it end in Monarchy." Others agreed with John Adams, who wrote, "Faction and distraction are the sure and certain consequences of giving to a senate a vote on the distribution of offices."

Most founders feared both unchecked executive power and the effects of faction. So they arrived at a compromise. As Alexander Hamilton put it, the Senate "may defeat one choice of the Executive and oblige him to make another; but they cannot themselves choose."

All Opposed?

Here, as elsewhere, George Washington established important precedents--determining, for instance, that the Senate's "advice" should come mainly after a nomination is made, and not before.

Washington also suffered the Senate's first rejection, during the summer of 1789. The president had nominated Benjamin Fishbourne of Georgia to be a naval officer in Savannah. But Georgia's senators wanted to give the job to someone else and persuaded other senators to refuse to confirm him.

The first overtly political rejection of a nominee came in 1795, when the Senate rejected Washington's appointment of John Rutledge as chief justice of the Supreme Court. Not long after Washington selected him, Rutledge harshly criticized the Jay Treaty, which both the administration and Senate supported. A few months later, the Senate rejected his appointment--making clear for the first time that a candidate's political views could be held against him.

Less courteous confirmation proceedings would follow, especially when party politics took off and executive appointments came to function as spoils within political patronage systems. From 1844 through 1853, for example, the Senate rejected seven of twelve Supreme Court nominees. The intensely partisan period immediately after the Civil War saw even more rejections.

Of course, no one ever said that interviews for executive jobs should be easy. Within the American system of checks and balances, Harry Truman said it best: "If you can't stand the heat, get out of the kitchen." Because the heat is built into the process.

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