Scot Lehigh: The Senate Was Never Supposed to Rubber Stamp Court Nominees

Scot Lehigh, in the Boston Globe (5-4-05):

IN THE battle over the judiciary, the most powerful idea the White House has going for it is that a president deserves an up or down vote on all his judicial nominees.

Lately, that assertion has become a virtual GOP mantra and it certainly sounds persuasive on first hearing.

Yet what that notion really boils down to is this: President Bush has a majority in the Senate, and thus he is entitled to his way, whether the minority likes it or not.

Actually, the Senate was specifically designed to resist that sort of domination by the majority.

Worried about the power of an unchecked executive and the runaway passions of the people, the Founding Fathers devised an institution strong enough to counter both. Indeed, their study of history had taught them that no republic had long endured without such a senate.

The Senate, James Madison told the Constitutional Convention, would "protect the people against their rulers" while also protecting "the people against the transient impressions into which they themselves might be led."

Its six-year terms were not only three times those of the House but two years longer than the president's, a longevity meant to impart independence.

Further, a staggered election schedule meant that only one-third of the members could be replaced in any given election year, for by "leaving a considerable residue of the old ones in place, uniformity and order . . . will be preserved," John Jay wrote in Federalist 64.

As Madison put it in Federalist 62, since the Senate required "greater extent of information and stability of character," unlike the House, where someone as young as 25 could serve, one had to be 30 to be eligible for the upper body, and a US citizen for nine years rather than seven.

And senators were originally elected not directly, as House members were, but rather chosen by state legislatures, putting yet another buffer between them and popular passions.

Most important, to ensure that the more heavily populated states wouldn't dominate the sparsely peopled ones, Senate membership would be based not on population but on statehood. Thus, representatives of a majority of states, and not just of a majority of the people, would be needed to enact legislation.

Meanwhile, the risk of seeing his nominees rejected by the Senate would make a president "both ashamed and afraid to bring forward for the most distinguished or lucrative stations" candidates who lacked merit, Alexander Hamilton wrote in Federalist 76.

The Senate was, then, a political prescription for moderation and compromise. As historian Robert Caro recounts in "Master of the Senate," the third volume of his LBJ biography, in 1806 the Senate added yet more insurance against majority domination by eliminating the ability to move the previous question that is, to end debate and bring a matter to a vote.

For 111 years, a single senator's decision to filibuster could keep any measure or nominee from coming to a vote, a far cry from today, when a vote by 60 senators ends a filibuster. Over the years, certainly, the Senate's insulation from pressure has been a mixed blessing.

In his historical overview, Caro lists as some of the Senate's proudest moments its rebuffing of Thomas Jefferson's assault on judicial independence through its defeat of his effort to impeach Supreme Court Justice Samuel Chase in 1805; its rejection of the ideologically driven impeachment of President Andrew Johnson in 1868; and its firm opposition to FDR's attempt to pack the Supreme Court after his landslide victory of 1936. Balanced against that are the cynical practices of Gilded Age Senate bosses, the isolationist torpedoing of the League of Nations, and the long years in which conservative Southerners blocked any significant progress on civil rights, sometimes through use of the filibuster....