“Advice and Consent” – And What It Means for the High Court

By Chris Adams

The guidance from the U.S. Constitution is pretty slim: “. . . he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court. . .”

From that, the White House and the U.S. Senate over 225 years have been grappling with how to place on the Supreme Court the justices who decide the nation’s thorniest issues.

In a session with National Press Foundation Paul Miller fellows, law professor Stephen Wermiel detailed the history of the court and its nomination process – something hot in the news as the Senate considered the nomination of Brett Kavanaugh. Wermiel teaches constitutional law at the American University Washington College of Law; he’s author of a biography on late Justice William J. Brennan Jr. – “Justice Brennan: Liberal Champion” (review, Amazon) – and also reported at The Wall Street Journal and The Boston Globe.

The very idea of protracted nomination fights is a relatively new phenomenon. In 1941, the nomination of James F. Byrnes of South Carolina was received in the morning and he was confirmed that afternoon.

“That’s almost impossible to comprehend now,” Wermiel said. Public hearings have only been the norm since 1949, he added.

Wermiel detailed the history of failed nominations, as well as the closest votes – and the fact that the votes have been getting closer and closer. The biggest turning point was the failed nomination of Robert Bork by President Ronald Reagan in 1987. It was a full-on political campaign on both sides.

“How many of you have seen television commercials about Judge Kavanaugh?” he asked the fellows. “Before the Bork nomination, that didn’t happen.”

He also talked about the sustained efforts by the administration of President Donald Trump and Senate Republicans to fill as many judgeships as possible on the federal courts below the Supreme Court.

Why is this so important? The Supreme Court last term decided 59 cases. Federal appeals courts during that time decided 30,000.

“The federal appeals courts have the last word on thousands of issues that don’t make it to the Supreme Court,” he said.

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