On Wednesday, President Obama fulfilled his constitutional duty of nominating Merrick Garland to replace the recently deceased Supreme Court Associate Justice Antonin Scalia. And now many Republican senators have affirmed their intention of refusing to hold confirmation hearings on two grounds. The first is that the Constitution does not require that the Senate vote on presidential nominees. The second is that the office can be vacant until after the November presidential election, when the national popular will declares itself at the ballot box and an appointment can be made consistent with that will.
As the debate over Garland’s nomination unfolds, it is instructive to follow the spirit of Antonin Scalia himself by examining “The Federalist,” the series of essays written from 1787 to 1789 by John Jay, Alexander Hamilton and James Madison to promote ratification of the Constitution in New York. Scalia made a habit of referencing these essays in his opinions, and he even urged lawmakers to “all get a copy of the Federalist Papers and read it, underline it and dog-ear it.”
I have several copies of The Federalist in my office in various states of disrepair from repeated underlining and dog-earing and have returned to them recently for wisdom in understanding the founders’ principles underlying the nomination process. The bulk of these arguments can be found in Hamilton’s “Federalist No. 76,” which he published on April 1, 1788.
Hamilton explains why the Constitutional Convention chose the method of presidential nomination and senatorial confirmation of federal judges by comparing it with four other alternatives. The first alternative would place this power in the hands of the people themselves — perhaps consistent in spirit with the democratic principle evoked by some Senate Republicans today. Hamilton rejects this, calling it “impracticable” to assemble all citizens and ask them to coordinate in selecting judges.
The second alternative would create an assembly of citizens to appoint judges. But Hamilton argues this could lead to partisan politics, partial interests, intrigue and corruption at the expense of the public good. Because members of the assembly would lack the individual responsibility for choosing judges, they would have little incentive to protect their reputations by making a responsible choice.
A third alternative, and one much more to Hamilton’s liking, would give appointment power to a single individual. He prefers this to assemblies since individuals have a “livelier sense of duty and more exact regard to reputation.”
The final alternative is the one found in the Constitution — with the president nominating and the Senate confirming. To Hamilton, this has all the advantages of the third option, with the added advantage of providing “excellent check upon a spirit of favoritism in the president, and would tend greatly to preventing the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.”
There are two principles that can be deduced from Hamilton’s view of the appointment process. First, he wants to reduce the role of politics as much as possible. He wants to avoid the kind of calculations that have politicians considering “the suffrages of the party” rather than the qualifications “which fit the person for the station.”
Second, Hamilton wants the appointment process to empower judges who will be both intellectually capable and virtuous. Part of what it means to be virtuous for Hamilton is to be free from “prejudice, from family connection, from personal attachment, or from a view to popularity” — which is another way of suggesting that party politics should play little to no role. To the extent that nominees have such attachments, the Senate should regard them with suspicion.
Hamilton concludes by reflecting on the virtue of senators and their ability to meet his standards for the confirmation process. One would expect him to have little hope, given that earlier in “Federalist No. 6” he describes men as “ambitious, vindictive and rapacious.” Yet he moderates his view here:
This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
In short, Hamilton argues that it would be wrong to assume everyone is bad. He expects that while the Senate will have its share of ambitious partisans, it should also have enough who are virtuous and civic-minded enough to set political considerations aside for the public good. In the case of the confirmation process, this means evaluating the president’s nominations according to the standards of intellectual powers and civic virtue.
What does this amount to? Surely, as many have already commented, the Senate is within its technical constitutional rights to withhold its vote on Garland. Yet insofar as this is motivated by political considerations, senators are in violation of the spirit of Hamilton, who argued that the entire point of the appointment process was to remove these considerations.
David Lay Williams is professor of political science at DePaul University and the author of several books and essays on 18th–century political thought, including “Rousseau’s Platonic Enlightenment” (Penn State, 2007) and “Rousseau’s ‘Social Contract’: An Introduction” (Cambridge, 2014). He is presently writing a book on economic inequality for Princeton University Press, entitled “The Greatest of All Plagues: Economic Inequality in the History of Political Thought.”