By: Erin Berhan
The passing of Ruth Bader Ginsburg this September brought grief and a raging debate on the advice and consent clause in the U.S. Constitution. Politics, not law, shaped the modern conception of advice and consent at one specific moment in American history — Brown v. Board of Ed.[1] The unanimous Supreme Court decision held that “in the field of public education the doctrine of ‘separate but equal’ has no place,” and the rejection of Plessy v. Ferguson shook this country to its core. Brown was met by an onslaught of political resistance.[2] We are still dealing with the aftermath of Brown today in the unsustainable weaponization of advice and consent.
On November 9, 1954, six months after Brown v. Board, President Eisenhower nominated Judge John Marshall Harlan to fill the first vacant Court seat.[3] On November 22, the Court postponed further arguments in segregation cases until that seat was filled.[4] Harlan’s nomination lagged, and a new procedure was born: Senate hearings to “study” Harlan’s nomination.[5]
Brown was not the only issue; Harlan’s grandfather was Justice John Harlan, the lone dissenter in Plessy v. Ferguson.[6] His refusal to assent to “separate but equal” validated Brown and attacked the logic of segregation. His dissent was clear: “[o]ur Constitution is color-blind” and the “separation of citizens” is “inconsistent” with our Constitution”[7] and cannot be justified upon any legal grounds.”[8]
Judge Harlan was eventually confirmed with a vote of 71-11.[9] But “advice and consent” would never be the same. Senator James Eastland (D-MI), who voted against Harlan, tied up the Senate floor for three hours to denounce the appointment,[10] became the next Chairman of the Judiciary Committee.[11] Eastland remained Chair of the Judiciary for twenty-two years, one of the longest serving Chairs of any Committee in Senate history.[12] Eastland was “staunchly opposed to civil rights legislation” and used his position as Chairman to that end.[13] Southern Senators, led by Sen. Strom Thurmond (SC) dominated the hearings for years thereafter.[14]
We never recovered. In 2016, hours after Justice Antonin Scalia passed, Senate Leader Mitch McConnell went further and was “proud” that he “looked Barack Obama in the eye and said, ‘Mr. President, you will not fill the Supreme Court vacancy.’” [15] McConnell had no legal authority to obstruct the President and subvert the Constitution.
Scalia was a textualist, deciding legal questions through grammar and dictionaries, and often found legal intent through the Federalist Papers. The Republican Senators did not follow suit in 2016 when blocking Judge Merrick Garland’s nomination for almost one full year, nor in 2020 when they rushed through Amy Coney Barrett’s nomination. They could not.
In our Constitution, Article I lists the duties and powers granted to Congress. Article II lists the duties and powers granted to the President. These are duties, not “rights.” The duty to nominate Supreme Court Justices sits with the President. If the Senate had power in the appointment process, it would be in Article I or stated explicitly. It is not. The text of Article II, § 2, cl. 2 says “He [the President] shall have Power. . . . and he shall nominate, and by and with the advice and consent of the Senate, shall appoint. . . Judges of the Supreme Court.” That McConnell lacked power is clarified, because “advice and consent” is explicitly conditioned elsewhere; the President has power to make treaties “provided two thirds of the Senators present concur.” No such condition exists for a President’s Supreme Court nominations.
Words matter — that is the bedrock of textualism. Shall is forceful and operative, commanding what will take place.[16] This remains fundamental in contracts today. Advice is subordinate, and consent here seeks agreement or concession.[17] Grammatical structure supports this: the operative clauses (the President shall nominate, and shall appoint) are dominant over the precatory, softer clause (by and with the advice and consent).
Our U.S. Supreme Court relies on the Federalist Papers today. Chief Justice John Roberts framed his 2019 Report on the Federal Judiciary by calling the Federalist Papers “an enduring exposition on the core principles of our constitutional democracy.”[18] They too are abundantly clear – our modern weaponization of “advice and consent” violates the Constitution.
In Federalist 76, Alexander Hamilton wrote that “advice and consent” was a mere “check upon [the President to] . . . prevent the appointment of unfit characters [such as] from family connection” and to avoid “the absolute power of appointment” in one person. The President’s “responsibility would be as complete as if he were to make the final appointment.” McConnell’s ploy was presciently rejected in Federalist 76, “But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself [the President].” And on and on: Federalist 66 “[the Senate] may defeat one choice of the Executive and oblige him to take another; but they cannot themselves choose.”
These are the words of our Founders, given modern judicial power by Justice Scalia and Chief Justice Roberts. As a nation, we must confront the ugly fact that the weaponization of advice and consent is a direct result of our racially charged history and we must return to a legal, not a political, process. We have procedures to help. Article I, § 5 of the Constitution empowers the Senate to self-regulate and enforce rules. Censures are an option, serving as a public reckoning and assertion that laws must be obeyed. Stripping voting power of Senators works to remedy past offenses. In fact, in 1902, two Senators lost their ability to vote after fighting on the Senate floor.[19] Subverting the Constitution and obstructing the President is surely a more severe offense. If self-regulation fails, the Constitution is law, and injunctions or other remedies can be brought to court. Law must always be bigger than politics.
[1] Brown v. Board of Ed., 347 U.S. 483, 495 (1954).
[2] What is colloquially called “The Southern Manifesto” was a declaration signed by 19 Senators and 77 members of the House of Representatives, submitted into the Congressional Record under the title “The Decision of the Supreme Court in the School Cases-Declaration of Constitutional Principles” Congressional Record, 84th Congress Second Session. Vol. 102, part 4. Washington, D.C.: Governmental Printing Office, 1956. 4459-4460. The manifesto was was read to then Senate Majority Leader, Lyndon B. Johnson. This detailed declaration was presented on March 6, 1956, almost two years after Brown I. The content and title state the goal — to constrain the Judiciary after their perceived encroachment and over-reach in desegregating schools and in overturning Plessy.
[3] Hearings To Be Set, N.Y. Times, January 21, 1955.
[4] Id.
[5] Id.
[6] Plessy v. Ferguson, 163 U.S. 537 (1896).
[7] Id. at 562, 559.
[8] Id.
[9] Senate Confirms Harlan to Bench, N.Y.Times, March 16, 1955.
[10] Id. The three reasons Senator Eastland gave for his opposition to Harlan’s Supreme Court Appointment were (1) Judge Harlan had not satisfied him that Harlan “would uphold the sovereignty of the United States in Supreme Court rulings” that may conflict with other existing laws; (2) “that ‘Judge Harlan lacks judicial experience and that this [was] a political appointment’”; and (3) Judge Harlan was from New York, “where the people ‘possess views and philosophies which are different from the viewpoints of the rest of the country.’”
[11] James Eastland, A Featured Biography, United States Senate, https://www.senate.gov/senators/FeaturedBios/Featured_Bio_EastlandJames.htm
[12] Id.
[13] Id.
[14] Carolyn Shapiro, What Members of Congress Say About the Supreme Court and Why It Matters, 93 Chi.-Kent L. Rev. 453, 457 (2018).
[15] a. a. Burgess Everett & Glenn Thrush, McConnell Throws Down the Gauntlet: No Scalia Replacement Under Obama, POLITICO, Feb. 13, 2016. https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248; See Judiciary Committee Republicans to McConnell: No Hearings on Supreme Court Nomination, https://www.grassley.senate.gov/news/news-releases/judiciary-committee-republicans-mcconnell-no-hearings-supreme-court-nomination
[16] Definitions of “shall”, “advice”, and “consent.” Oxford English Dictionary, 20th Ed.
[17] Id.
[18] 2019 Year-End Report on the Federal Judiciary, John G. Roberts, Chief Justice (De. 2019). https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf
[19] a. The Censure Case of John L. McLaurin and Benjamin R. Tillman of South Carolina (1902), https://www.senate.gov/artandhistory/history/common/censure_cases/090Tillman_Laurin.htm.
