As a disclaimer, I am not a constitutional scholar, even if I have been told that I am otherwise a decent enough lawyer. But this idea that the Senate has the burden to prove why a nominee should not be appointed appears to be utter nonsense even to the Constitutionally ignorant like myself.
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, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Reading Article II Section 2 in light of the seminal case of Marbury v. Madison, which describes the delivery of a signed commission of office by the President as a ministerial act, and U.S. v. Smith, a case from 1931 which establishes the limits on the Senate's ability to recall and reconsider a previously granted advice and consent, it seems fair to say that the Framers contemplated three independent steps before the most powerful executive and judicial officers in the land, other than the President and Vice President, would actually be permitted to assume office:
a) The President nominates the person that he wants to serve, based on his desired criteria;
b) The Senate evaluates whether it also wants the person nominated based on its independent desired criteria and either agrees or disagrees with the President's selection. If it agrees, it then provides its advice and consent authorizing the appointment.
c) If the Senate has advised and consented, the President is authorized to appoint his/her nominee (with no duty to do so if he changes his/her mind before signing the commission, but with the ministerial duty to deliver the commission to the appointee once it has actually been signed.)
Why is this cumbersome system even in existence? Well, if we believe Alexander Hamilton, it is designed to prevent the President from imposing nominees on the nation based solely on his personal or political predilictions:
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
In other words, a fair reading of the Constitutional language and the intent of the framers as expressed by Hamilton is that there is not only a right, but a duty for the Senate to serve as a check and balance on the President's choices for office unless the Senate chooses to relinquish that role within the context of inferior offices. There is no evidence in the language of the Constitution or in the framers' writings suggesting that the Senate is supposed to be a passive body or mere ratifier whose Constitutional duty is to give the President the Supreme Court (or any other) nominee he wants unless it can come up with an extraordinary reason not to. Instead, a fair reading of the language of Article II Section 2 in light of both Hamilton's discussion of the purpose of the advice and consent clause and the few cases addressing it suggests exactly the opposite conclusion:
Unless the Senate independently agrees with the President about a Supreme Court nominee, the President gets bupkis, other than the right to keep trying by nominating someone else.
Further evidence for this understanding of the Senate's duty in Article II Section 2 is readily found in the Senate's power of reconsideration, a power that has never been challenged by the Executive except within cases where the third step had already occurred and the President had already signed the commission of appointment. Any Senator voting in the majority on any appointment may bring a motion for reconsideration within two executive session days to reconsider any act, in accordance with Senate Rule XXXI. In the case of a nominee to office, the absolute right to reconsider during that time exists so long as that reconsideration occurs before the actual commission making the appointment is signed by the President. It is only once that act occurs, according to U.S. v. Smith, that the Senate act of "advice and consent" is deemed complete and irreversible.
What is also notable about Rule XXXI is that there is absolutely, positively, no mandate for an up-or-down vote in it. Instead, Section 6 of the Rule clearly provides that
6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.
Why would Senate Rule XXXI contemplate that there will never be a vote on a nominee at all and prescribe the outcome of such a situation?
Because of the time-honored, accepted by anyone other than the current fascists occupying the majority of seats in the Legislature and the Executive Branches, practice of filibuster.
Filibuster is, under any reasonable review of history, an extraordinary remedy. A remedy which allows a substantial minority in a legislative body (now, only the Senate, although it was previously a right of the House as well) to prevent an act by the majority. Has it always been used for just causes? Of course not - it has been used as much to advance hateful and racist American ideals as it has been to assert populist stances. But the filibuster has a 150 year history, and our nation has not toppled as a result.
Filibuster is clearly not intended to be day-to-day practice in the Senate, and 150-year history reflects that. However, just because the last time a Supreme Court nominee was filibustered was in 1968, following Johnson's ill-timed attempt to elevate Justice Abe Fortas to the role of Chief Justice does not mean that filibuster is improper. Arguably, the sparse use of the practice suggests that it is Working as Intended: it is to be used in truly extraordinary circumstances, where a facial majority of the Senate might otherwise force an appointment that is viewed by a substantial minority as not just unfavorable to their constituencies' legitimate interests, but instead highly adverse.
This is the situation in which we find ourselves with Judge Samuel Alito.
That Judge Alito is a judge whose view of the Constitution and the rights possessed by Americans is highly conservative is not in dispute and, indeed, Judge Alito would likely be proud of the label given his stated reasons for developing an interest in the law (opposition to the Warren Court's jurisprudence) in the first place. Even Republicans do not try to argue that Judge Alito's elevation will not change the direction of the Court towards the highly conservative. (To the contrary, some are even as I write fully admitting that this is likely to be the case in today's floor debate, finally admitting that it would be completely appropriate if Judge Alito after his appointment plays a role in a larger culture war.)
So then why do Democrats find themselves on the defensive, when it comes to raising hell about Judge Samuel Alito? Why are we on the ropes? After all, if I believe the historians 25% of all Supreme Court nominees have ultimately NOT been confirmed, whether because their nomination was withdrawn or because they failed to obtain the Senate's consent. That's 1 in 4, belying the current Republican spin that somehow, not voting to confirm Judge Alito even if he is qualified is "extraordinary or "unheard of". It's neither, even if it doesn't happen most of the time.
(In contrast, cabinet appointees have been rejected only 2% of the time, a truly rare outcome that makes perfect sense if you think about it: the cabinet is truly intended to be the President's closest advisors, such that without personal rapport and deep trust, they cannot truly fulfill their offices. As opposed to Supreme Court justices, whose Constitutional role is not to serve the President, but to serve as a balancing check on that same and later Presidents and the Legislature).
What is extraordinary, however, is having a Supreme Court nominee whose own work before his ascention to the bench, and lengthy judicial record make clear that he may well become the deciding vote in effectuating a sea change in some of the most fundamental pillars of our current society. The most obvious, of course, is Alito's embrace of substantive Unitary Executive Theory, a theory which has been (badly) pressed several times now by Justices Scalia and Thomas on the bench all by their lonesome. A theory which carried too far at the substantive level can be defiant of clear Constitutional principles that even Justice Scalia -- one of the theory's staunchest proponents, as evidenced by his vociferous dissent in the independent counsel case, Morrison v. Olson -- raised a rhetorical objection to it, as the Administration tried to apply it in the Hamdi case.
As this rich historical description of nomination process on the Senate's website makes clear, Democrats are not only within their rights, but practically duty bound to take extraordinary measures to stop the appointment of Judge Alito the Court. This nomination is not one in which the evidence suggests that the passage of time will temper the nominee. After 15 years on the bench, and in light of his deliberately opaque testimony before the Judiciary Committee, there is simply no evidence that Judge Alito is going to change anything about who he is or how he sees the world.
So what else does it take for Democrats to stand up and fight this to the (rhetorical) death? An engraved invitation? Hell, if even the New York Times -- an arguable co-conspirator in the Bush Administration's constitutional overreaching this past five years as evinced by both Judy Miller's unapologetic shilling for the illegal invasion of Iraq and the Times' decision to withhold the truth about warrantless spying on Americans until after the November, 2004 -- now says "Stand up and filibuster this frightening man!", then we know how serious this moment in history really is.
I couldn't agree more with the Times, this morning:
A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.
Our Democratic Senators are, at this moment, desperately in need of a spine. Let's hope the hundreds of thousands of calls, faxes, e-mails and public statements of objection grow them one, fast. If they don't, and Alito is confirmed, we might as well pack up and throw in the towel on the still-unrealized American ideal, a country governed by checks and balances, in which each of the three branches of government separately assure the inability of extremism to limit our ideals of freedom and opportunity and the Supreme Court is the last bastion of our rights against the tyranny of the majoirity. With the shifting of the Court in such a dramatic fashion, the last curtain on what most of us revere as the theoretical, even if not actualized, ideal of America (where at least in theory the powerless matter as much to our identity as the empowered; the poor matter as much as the rich; women as much as men; non-white as much as white) will have slowly begun to fall.
It's not about Alito's credentials, no matter how much the Republicans are screaming the "he's qualified!" line as the reason that Bush is "entitled" to his choice. It's about Judge Alito's view of America and how it will play out on the bench. It's about what we already know on that subject, which is not reassuring to anyone who isn't a rich white male corporatist (and is even distressing to many of those whose morals have not taken second seat to their greed and lust for power.) A view of America that, no matter what the tyrannous majority that gave us Emperor Bush and the Republican Legislative Majority believes is best, the Senate representatives of the minority who will be tyrannized if the Court begins to abandon the liberal, rights-based jurisprudence of the last 60 years, has both the right and the DUTY to stand up and fight to protect the rights of their constituents.
By Any Means Necessary.
Including the ultimate means available in a Senate appointment fight when a substantial minority believes that an appointment is not in the best interests of its constituency: the filibuster.
Democrats, do your duty. Filibuster Judge Samuel Alito.