Framing the Framers
The Washington Post ridiculously offers Ted Kennedy as judicial sage.
Andrew C. McCarthy
National Review Online
It would be hard to parody one of the mainstream media's self-absorbed, pricelessly shallow, soul-searching sessions. You know, the ones where editors and other executives wonder aloud about how it could possibly be that subscriptions and ratings — and with them, influence — are plummeting. These are already too hilarious, however unintentionally so: set pieces in which this or that latest coverage debacle is plumbed, the soul searchers determine that their own hearts are still pure after all, and pronounce with breath-catching relief that if there's a disconnect between them and the public, well, surely we need a new public.
But if anyone really wants to know why the MSM is fading fast, consider one of the most recent classic examples: The decision by the Washington Post to run an op-ed by Ted Kennedy, of all people, about how we need to avoid the rank partisanship of a "divisive battle" over a new Supreme Court justice to replace the departing Sandra Day O'Connor. About how President Bush needs to be more like — are you sitting down for this? — President Reagan in wisely choosing a nominee to the high court.
We would need to dig up Yasser Arafat for an op-ed on fixing the "peace process" to concoct something this rich.
No one on Planet Earth is more singularly responsible for the poisonous state of the confirmations process than the senior senator from Massachusetts. Here is what Kennedy had to say in 1987 when the president he now so admires, Reagan, nominated to a seat on the Supreme Court Robert Bork, an accomplished legal scholar who was then a distinguished sitting judge on the United States Court of Appeals for the D.C. Circuit:
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Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim or [sic] government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
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As I've said here previously, this was as scurrilous a libel as they come.
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And given that Kennedy knew Bork would presumably be returning to the D.C. Circuit if not confirmed to the high court, it necessarily meant this senior member of the Judiciary Committee — the Senate body responsible for vouchsafing the integrity of the United States courts — was recklessly, baselessly scandalizing at least one of the two most important benches in this country.
Was there a case to be made against Bork? Not for those who believe in fidelity to the original understanding of the Constitution and think an honorable public servant possessed of impeccable professional credentials rates a weighty presumption in favor of confirmation. Indeed, so high is the deference generally accorded public service and professional accomplishment that there have often been one-sided confirmations of nominees whose records as already-sitting judges signaled they were more apt to rewrite the Constitution than adhere to it (signals experience has reliably confirmed).
But for enthusiasts of the "organic" Constitution, there was a forthright case to be made against Bork. They could have candidly stated their view that judges are at liberty to fashion a new Constitution to fit the times — to hold that express terms like "equal protection" do not mean what they say, and that nonexistent terms like "privacy" and "wall of separation" state principles so ever-expanding as to gobble the actual written words. They could have asserted frankly the conceit that the public cannot always (or even usually) be trusted to resolve controversies on which the Constitution is silent — that the judiciary, rather than the democratic process, is the preferred vehicle for determining how the American people should live their lives.
Such honesty would have been commendable. But the position it espoused would, of course, have been unpopular to the point of political suicide. So its adherents laid low in the tall grass. Instead, the order of the day became libel, and Senator Kennedy was at the head of the class.
Nothing he said about Bork, not a word of it, was true.
Even for people of good will opposed to Bork, Kennedy's execrable performance should stand as a monumental disgrace — a brand of naked character assassination that remains one of the most despicable performances in the modern history of the Senate. So much so that it has turned Judge Bork's name into a colloquial verb — and one whose use has become all too familiar in the modern confirmation process.
More than any other person, Kennedy is responsible for the unsavory state of modern confirmation politics — for the reluctance decent people of all political stripes now have about subjecting themselves and their families to what used to be the high honor of a summons to public service by the president of the United States. For the Washington Post to have him lecture us from its much coveted opinion pages about the pressing need for an "expeditious, cooperative and unifying [appointments] process" is nothing short of astounding.
Similarly precious is Kennedy's Independence Day paean to the vision purportedly shared by "the framers of the Constitution." The senator nods cloyingly to these "wise men, meeting in Philadelphia in 1787, [who] well remembered the events of 1776 that we celebrate today."
He then manages to mangle everything they had to say on the subject of choosing judges.
After much debate, Kennedy recounts that "[o]ur forefathers finally compromised and authorized the president to make appointments 'with the advice and consent of the Senate[,]" a display of "genius" the upshot of which meant a "joint" power calling for "cooperation and consultation and consensus" between the president and the senate. To effectuate the Framers' construct (and we all know how devoted Senator Kennedy is to the original understanding of the Constitution), a president must take "seriously the 'advice' part of 'advice and consent' by sharing the names of prospective nominees with the leadership of both parties in the Senate, the Judiciary Committee, and other senators who will fairly reflect the balance of views in the Senate and the country." Only this way, according to the old sage, can we avoid "candidates who would come to the court with personal, partisan or ideological agendas" — since, as we know, Ted Kennedy would never want an agenda-driven judge.
There's only one problem.
The Framers' actual vision is the antithesis of Kennedy's depiction.
The Framers thought the Senate should have no part of the nomination process at all.
And they made this abundantly clear in several ways.
First and foremost is the plain language of the Constitution, which draws a bright line between the two powers that are at issue (and that Kennedy disingenuously conflates into one by ignoring the first): nomination and confirmation. Explicitly, the Constitution provides, in pertinent part, that "he [i.e., 'The President'] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court" (see Art. II, Sec. 2, Para. 2).
Literally, the president alone does the nominating; only after the nomination is made does the Senate offer its advice and either consent or demur.
Plainly, the "advice" part of "advice and consent" cannot conceivably have been meant, as Kennedy claims, to include review by senators of a pre-nomination list of "prospective nominees." It is the nomination that triggers the advice function, not the other way around.
Not only did the framers elucidate this by very unambiguous language. They also placed the clause in Article II, which enumerates executive powers. Thus, the unadorned prerogative to nominate is a unilateral presidential power. It was not, as Kennedy asserts, "envision[ed]" by the Framers as a shared power.
To further make the obvious explicit, one of the greatest of the Framers, Alexander Hamilton, provided explanations of the Framers' thinking in The Federalist Papers. he wrote in Federalist No. 66,
"It will be the office of the President to nominate, and,
with the advice and consent of the senate, to appoint.
There will, of course, be no exertion of choice on the
part of the Senate. They may defeat one choice of the
Executive, and oblige him to make another; but they
cannot themselves choose — they can only ratify or
reject the choice he may have made."
Why did the Framers structure things that way?
Why did they decide to cut the Senate out of the choice of whom to nominate?
Hamilton answered in Federalist No. 76.
The Framers were concerned about candidates whose calling cards would be agendas, personal ties, and politics rather than merit — the very things Kennedy cites. They thought, however, that there would be a multiplier effect on these unworthy credentials if the choice of nomination were committed to a committee or, worse, to the full senate. Better, they concluded, to repose this authority in the "sole and undivided responsibility of" a single official, the president, for this would "naturally beget a livelier sense of duty and a more exact regard for reputation."
It was the post-nomination appointment power that the Framers believed the senate should share — but only as a check on the potential that base motivations would operate on the president in choosing nominees, not as a means for the senate to co-opt the nomination power itself.
In fact, in Hamilton's telling, the Framers believed senators would exercise the advice-and-consent function more responsibly if they understood that they were not in the nomination part of the equation. For they would know that if they overruled a nominee, all they could be assured of getting was another nominee of the president's choosing. As Hamilton put it, "they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination."
President Bush has already told the nation that his administration is actively consulting with members of the Senate regarding Justice O'Connor's successor. That is a fact of modern political life, and it might even be prudent. But it's not the way the Framers wanted it. To pretend otherwise, to wrap oneself in a faux originalism, is cheap. For it to be done by the guy who single-handedly warped a solemn procedure into something the Framers would be repulsed by is more than one should have to bear on this most profound of national holidays.
Senator Kennedy has done more than anyone to inject into the process of staffing the U.S. courts the base, personal, agenda-driven politicking that the Framers hoped both the courts and the nominations process would be above. It appears he has learned nothing in the two decades since he pointed us down this low road by slandering Judge Bork. Why the Washington Post thought the Fourth of July would be a good day to foist more of his blather on us is anyone's guess.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.
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