Implications of the President’s Appointment Power

Peter E. Quint

When Robert Bork died recently, the obituaries focused primarily on the Senate’s rejection of his nomination to become an Associate Justice of the Supreme Court. Although there may have been several grounds for the negative votes of individual Senators, certainly many of those who voted against Bork were animated by their disagreement with positions that they assumed Bork would take in deciding cases in the Court. Prominent among these positions was Bork’s rejection of capacious rights of privacy and equality, which Bork viewed as illegitimate products of judicial construction, as well as Bork’s narrow view of the freedom of expression, a position that he had advanced in a well-known law review article. In 1963, Bork also published an article criticizing the public accommodations section of the proposed Civil Rights Act of 1964—on the grounds that it might interfere with the liberty of some discriminators—a view that he later sought to characterize as a thought experiment.

Commentators, then as now, asserted that rejections of Supreme Court nominees on such “ideological” or “political” grounds were rare or unprecedented in the Supreme Court’s history, and some claimed or implied that rejection of a judicial candidate by the Senate on such grounds was improper or at least unwise. According to this view, the Senate should generally “consent” to a President’s judicial nomination unless there are “neutral” disqualifying factors such as the nominee’s lack of judicial ability or past financial or other improprieties.

Yet whatever history may tell us about the frequency or infrequency of opposition to judicial nominees based on “political” or “ideological” reasons, it seems clear—as several eminent commentators have pointed out—that there is no argument of substance against the propriety of senatorial opposition based on such grounds. In the choice of members of the federal judiciary, including Supreme Court Justices, the President and the Senate must act as collaborators. According to the constitutional text, the Senate should give the President “advice” —that is, the Senate (or certain chosen members) should give the President an idea of the persons (or kinds of persons) who would be particularly acceptable to the Senate. The President then makes the appointment subject to the approval—the “consent”—of the Senate. There is certainly nothing in the text that suggests that either the President or the Senate should ultimately play the superior role in this process, as both must approve the choice. Moreover, there is no argument on principle for such a view. The President and the Senate are collaborating in the choice of a member of the third branch. That branch may obviously have an impact on the work of both the President and the Senate in the future, but it is an independent branch not within the actual purview of either of the departments that are collaborating in the choice.