The Corner

More on Dr. K’s Column and the Confirmation Standard — if There Is One — for Presidential Nominees

I’m an ardent fan of all three Powerline bloggers, so I especially appreciate John Hinderaker’s kind words. John has taken note of my comments of yesterday regarding Charles Krauthammer’s column, which makes an impressive case against Judge Sonia Sotomayor’s nomination to the Supreme Court but nevertheless concludes that she should be confirmed. Dr. K draws this conclusion based on the deference he believes the Senate owes presidents on their judicial nominees. 

John is intuitively inclined to agree with me that the Senate owes the president more deference on executive branch appointments than judicial ones, but he correctly points out that there is no such distinction in the Constitution and wonders: what is the correct standard?

I’d argue that there isn’t one. I think we lawyers tend to look for standards and rules, but the Framers trusted ordinary politics and most certainly did not want to turn a political duty (advice and consent) into a legal one — something I think our hyper-legalistic culture does and which, perniciously, threatens to make courts our overseers. After all, if there is a standard, the next thing is we’ll have nominees running into court claiming to have been wrongly denied confirmation.

When the Constitution does not set specific requirements for the exercise of a constitutional authority, the check on the abuse of that power is the electorate. There should be more lax scrutiny of executive appointments than judicial ones only because it makes sense for the reasons I laid out yesterday, not because there has to be more lax scrutiny. 

Given the stakes involved, it is only natural that an appointment to the courts, especially the Supreme Court, should warrant more exacting inquiry than the appointment of a member of the president’s own administration — who wields only the president’s own power anyway, who can be fired at will by the president, and who will serve only a limited term in a politically accountable branch. But the standard is whatever the senator’s constituents think is reasonable — if confirmation is withheld unreasonably under the circumstances or granted too easily, a senator’s constituents will punish him or her at the ballot box (although how much the issue will have to do with whether the senator is reelected depends on how important the public thinks the issue is in the greater scheme of things).

Not having a standard means we trust senators to do their jobs responsibly and trust the public to be the final arbiter of how the senators have performed. That’s a freer, more accountable republic, I think, than one that is over-lawyered.

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