Monday, June 28, 2010

The Newshour on Bork's Lasting Impact

Confirmation hearings for Supreme Court Nominee Elana Kagan begin today. In anticipation, The Newshour interviewed Marcia Coyle, its go-to correspondent on Supreme Court stories, on changes in the nomination process. I agree with Coyle that the Robert Bork nomination was a turning point. Prior to Bork, the Senate generally showed deference to the president's picks. There were some exceptions, but the reasons Senators provided for rejecting a nominee were never for ideological reasons prior to Bork. (Ideology may have been the real reason for rejecting a nominee, but this was not admitted to in public.) Since Bork, every Supreme Court nomination has been an ideological battle, with interest groups heavily involved on both sides. Democrats have argued that Republican nominees are too conservative. Republicans have argued that Democratic nominees are too liberal. You can expect more of the same this week.

In "Federalist #76," Alexander Hamilton wrote about the reasons he thought the Senate may reject a president's nominee:
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.  
Hamilton thought that Senate confirmation was a check on the president to make sure they appoint qualified people, rather than friends and family members. Just having this check, however, would be enough to prevent nepotism. It would work as "a silent operation," meaning that the president knows not to make a foolish nomination due to the confirmation process. The "silence" also suggests that most confirmations would happen without much debate or controversy.

What do you think? Should Senators reject nominees on ideological grounds, or should they show deference to the President.

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