There aren’t many people who think the current state of the Kavanagh nomination is any kind of model for future nominations. So the question arises, what will future nominations be like ? I’m not bullish on the prospect.

First : we have allowed the Supreme Court to become almost entirely a political body in which nine justices render political decisions that the Congress s unable or unwilling to arrive at. The Court was not frame to do this, and, correctly, the voters will not accept the Court doing it.

Second : being now a political body, elected by no one, decided by a majority of the one hundred Senators, the Court finds itself chivvied by nominees who, if confirmed, arrive with their integrity and/or legitimacy severely wounded. Thus both the Court AND its membership attract scant respect and scarcely merit it.

Third : being entirely political, nominations become occasions for partisan campaigns. As Congress campaigns have become battles between this one’s misleading ads and that one’s false statements, so will Supreme Court nominations become an arena for lying and deception, ambush and smears, gaslighting and grandstanding. Hardly a recipe for amassing any public respect.

Can this prospect be reversed ? Not very likely. To use the current argot, you can’t unsee what you’ve seen or unlearn what you have learned. Devices used will be used again. If a nominee can’t be slandered, or belittled, or made to look shady, he or she won’t be granted a hearing at all (Merrick Garland). Nor is the Constitution any help. In requiring that the Senate advise and consent, without more, it opens the door to whatever interpretation suits the political interests of a majority.

For the past fifty years or so, Courts have ruled that where a contract requires the consent of one party to the proposal of the other party, it is necessarily implied that such consent ‘shall not be unreasonably withheld.” Today, contracts include that express language. Why should the “consent” requirement in Article II of the Constitution not include the same implication ? Contracts are not contracts at all if they are negotiated in bad faith; and to withhold consent unreasonably, as Mitch McConnell’s Senate did to the Merrick garland nomination in 2017, is an act of bad faith that, in my opinion, per se violates the Constitution. If those who the Constitution directs do not act in good faith, its precepts don’t mean much.

Article II, Section 2, Clause 2 sets forth the directive :

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.

In English law, the advise and consent power rests entirely with Parliament :

This enacting formula emphasizes that, although legally the bill is being enacted by the Queen of the United Kingdom (specifically, by the Queen-in-Parliament), it is not through her initiative but through that of Parliament that legislation is created.

Here, however, the framers thought differently. Their view was that President and Senate share equally the power to appoint and nominate. If that be the case, then the implied “shall not be unreasonably withheld” precept is included in the grant of power. Which, to my mind, means that President and Senate must confer upon nominations, meaning, perforce, that the President and Senate be in the same room, at one of those big conference tables we’ve seen President Trump sitting at with Senators gathered around. This is a recipe for teamwork, President and Senate conferring together, equally, to elevate or decline to raise a nominee — nomination being the exclusive province of the President — to the office nominated.

Yet American nominations have come to be anything but collegial. Political division, Republican versus Democrat, has rendered Article II nominations adversarial. The Senate, or half of it, greets the nomination with suspicion, with skepticism at best, and treats it as a detriment to their political prospects.

Perhaps the English advise and consent view is more realistic. Parliament is divided into two sides that face each other across a big room, and as such, its advise and consent function naturally takes the shape of party versus “the party opposite.” the party in power carries the day, and that’s that.

We, however, have been wedded to the more idealistic view, that Article II expects collegiality. Nor are we wrong to cling to this view, because a nomination of course carries greater authority if an overwhelming majority — both sides — buy into it. Consensus, at least in our system, is always stronger than rule by one side of the room only.

I don’t think we are head in the direction of collegiality. The Parliamentary method seems much more the case. As our politics have become ever more rigidly divided into Republican and Democrat, nominations will succeed, or fail, by the vote of mere majorities cohesive by party; and the other party will never consent, but will enforce its majority order when it attain Congressional power. This is becoming ever more the rule in all matters before Congress, no matter who is President, and I see no reason why it won’t become the norm for Court nominations. that such nominations leave even the successful nominee (to ay nothing of those rejected) cut in half, politically, and the institution nominated to damaged as well, is something we’ll just have to get used to.

If that is even possible.

—- Mike Freedberg / Here and Sphere



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