By John F. Di Leo -
Reflections on the confirmation process, now and then...
While watching the news this week, one was forced to ponder many things... the Supreme Court, the United States Senate, the wonders of the internet, and how far we have fallen as a nation.
We have more information at our fingertips today than anyone ever had in generations before. Questions might take hours in a library to research, staring at encyclopedias, digging through dusty old reference books, even squinting to read old periodicals on microfiche.
Such methods still exist, for data not yet digitized, but 90% of what we need is now available online at the click of a mouse. There is no longer any excuse for being ignorant of the process, the issues of the day, or the big names in the news. Everything is literally at our fingertips.
The Appointment Process
Why then, for example, do we need a complex nomination process in the US Senate? Doesn’t everyone know everything about whoever a President appoints, right down to his high school GPA, his hat size and his favorite color, within hours of the announcement?
Well, yes we do. But it wasn’t always that way.
Think back, for example, on that very first Supreme Court, in 1789. President George Washington was scrupulous in his appointments. Fully conscious that his every action would be precedent for centuries to come, President Washington set certain standards for every job he had to fill.
The person needed to be indisputably qualified for the job, to begin with. This might seem, today, like it goes without saying, but in those early years, nothing could be assumed. We were a new nation of thirteen separate countries (yes, despite the wording in the Constitution, on which the ink was barely dry, each state thought of itself as a separate country, friendly with its neighbors, but not yet fully “united” with them in trust and sensibility).
There was therefore a very genuine fear in the early days that if we elected a Virginian, he’d pack the government with his fellow Virginians. If we elected a New Yorker, Pennsylvanian, or New Englander... the same. President Washington knew he needed to allay such fears.
He was therefore rigorous in his application of geographic diversity as well as an insistence on solidly patriotic resumes in every appointment he made.
- His Secretary of War, Massachusetts native Henry Knox, was a commanding general;
- His Secretary of State, Virginian Thomas Jefferson, was our last Ambassador to France,
- His Chief Justice, New Yorker John Jay, was a prominent lawyer who had written the Federalist Papers on the judiciary.
All had decades of solid patriotic bonafides; they all represented different areas of the country. Washington’s administration was a portrait of fairness, with every state represented by people of unquestioned patriotism and job credentials.
The problem of the era, however, was that no single politician, however experienced, however well-traveled, could possibly know every potential appointee personally, nor could he have had recent personal experience with all of them, as his past association might have been decades in the past...
… which brings us to the difficult case of John Rutledge.
Chief Justice John Rutledge of South Carolina
John Rutledge was an early patriot, active in the movement against England since the early 1760s. He participated in the Stamp Act Congress and the Continental Congress, and served as South Carolina’s president, then governor, throughout most of the War of Independence.
After just a few years in private practice following the war, Rutledge represented South Carolina at the Constitutional Convention, and then, in that first administration under the Constitution, he was appointed one of the first Associate Justices of the Supreme Court.
There was very little to do on the Supreme Court at first, however. After a year on the Supreme Court, Rutledge resigned to become Chief Justice in South Carolina.
So it was, that, in 1795, when Chief Justice John Jay resigned to become governor of New York, John Rutledge was in every way a logical appointee to fill that vacancy, and become our second Chief Justice.
Washington’s personal acquaintance with Rutledge was long, close... and dated. They had served together on the Continental Congress in the 1770s; they had corresponded throughout the war and for years before and since, and they worked together on the Constitutional Convention in 1787.
But what Washington did not know in 1795 – could not know – was that since Rutledge’s first departure from the Court, his wife died in 1792, leaving him suffering from depression. A man who had always been a bit haughty before, as a heartbroken widower, he grew careless and opinionated on his own, turning perhaps to drink, losing that balanced, judicious demeanor that one needs in a justice.
The Senate was out of session when the Jay vacancy opened up. Washington appointed Rutledge as a recess appointment, assuming that the Senate would naturally confirm him in December. They had confirmed him five years earlier as an Associate Justice; of course they would again.
Imagine his shock when he learned that Rutledge – this stable, judicious, experienced attorney and politician – was making speeches denouncing the Jay Treaty with England, even saying that America would be better off if the President should die – yes, the same President who had just appointed him to the highest legal office in the land – than for the President to sign this treaty.
Only then did Washington learn what he hadn’t known before – that the Rutledge of today was no longer the Rutledge of just a few years prior.
The system worked as intended. Rutledge was seated in August, 1795 – a recess appointment - and the Supreme Court started hearing cases. The Senate returned to session in December, horrified at the thought of a man thus afflicted becoming the head of the high court, and rejected the appointment, fourteen to ten (though it is instructive to note that the rejection was far from unanimous).
Rutledge attempted suicide a week later, thus apparently confirming the diagnosis of mental illness in the public eye. He resigned the office, and retired to his native South Carolina, a broken man. A tragic end for a patriot who had done so much for his country for so many years.
The Lesson of the Rutledge Experience
As much of a tragedy as the John Rutledge experience was, it demonstrated the cool wisdom of the system – a system, in fact, which Rutledge had had a hand in designing.
No President, however well-traveled, however connected, could know everything about every appointee. Giving the Senate a chance to vet major appointees would protect the nation against such unexpected issues. If even the incredibly fair, scrupulously balanced George Washington could get it wrong, then so could any other mere mortal.
Note that, in this case, there was never any question of the appointee’s experience, patriotism, or ability. Rutledge chaired the Committee of Detail at the Constitutional Convention. He was personally responsible for several important Supreme Court traditions, such as the position that they must never give “advisory opinions” about hypothetical cases; he maintained that the Supreme Court should only address real cases before them, real cases with real facts to weigh against the written law.
His problems – depression and temperament - were problems that US Senators from his own state, or from nearby states, might have known about, even if a distant President did not.
Remember that in those days, the Senate was as designed by the Convention: a body of respected elder statemen, selected by their state legislators and governors, not directly by the voters. Until the Seventeenth Amendment turned the Constitution on its head and destroyed the Framers’ plan, it was a body of the most connected, most senior politicians in their respective states.
As America grew, in an era long before the computer, the television, and the 24/7 news cycle, they knew that it would steadily become ever more impossible for people from one state to know people three, four, five states away. The Senate was there as a final check on the President, an opportunity to catch an appointment error before it went too far.
In the Rutledge case, Senators from South Carolina, in theory, either would have known of Rutledge’s recent problems themselves, or would have written back to their colleagues at home, to ask for the latest. “The President is considering John for Chief Justice. How’s he doing at the SC Supreme Court? Anything we should know?” They would expect nothing surprising, but if there was anything to learn, they would find out before vote, and the process would work.
The President has the right, and the duty, to appoint his best choice. The Senate would always have the opportunity to catch a grievous error. A logical, and thoughtful, approach for its time. And it worked.
Appointments in the Modern Era
Much has changed since then. Amendment XVII robbed the Senate of its elder statemen. Computers and reporters make it possible to discover everything one could possibly need to know about each appointment. The massive staff of the modern Executive branch enables a President to do tons of research before making his choice. There is minimal risk of a Rutledge problem happening again.
But there is a risk, nevertheless, which the Senate can help address. Even today, a President might appoint someone with a problem, knowing about the problem but not caring. Even today, a President might appoint someone lacking the needed experience. Even today, a haughty President who hid his own radical views to get elected might appoint people with radical views to populate the Executive branch.
Even with all the changes to the body of the Senate, the “advice and consent” function still works, potentially protecting the nation from such circumstances. The press and the internet can cooperate to reveal the truth.
It is a good system, however it may be abused.
And oh yes, it has been abused. Then-Senator Joe Biden turned President Reagan’s nomination of the incredibly-qualified Robert Bork into a circus, largely by capitalizing on the nominee’s unusual beard. Then Biden derailed the brilliant law professor Douglas Ginsburg’s nomination by attacking his having attended a college party where marijuana was used (and this, despite Biden’s party having spent a generation working to get the weed legalized).
But despite such excesses, the tool of advice and consent is a good one.
Republicans used it when George W Bush tried to appoint Harriet Miers to the Court, successfully shaming the President into appointing the far superior Samuel Alito instead.
Democrats used the advice and consent process to try to smear Brett Kavanaugh with perjurious witnesses and a corrupt media, which worked out well for a very different reason: Kavanaugh made it onto the Court, and the Leftist liars involved were revealed for the corrupt cretins they were.
The nomination process therefore does many things for us, some of which the Framers probably never even dreamed of.
Who could watch the Amy Coney Barrett hearings, for example, without seeing for themselves how incompetent, corrupt, and deceitful today’s crop of Democrat Senators are?
- Sen. Cory Booker (D, NJ) tried to trick her into insulting homosexuals; she didn’t take the bait.
- Sen. Mazie Hirono (D, HI) tried to plant a seed that this upstanding and normal Christian wife and mother might be a sexual predator; Hirono only showed herself to be a slanderer and fool in the process.
- Sen. Kamala (D, CA) Harris primarily used the free press coverage as a campaign commercial, and to again try to con the country about the heavenly nature of Obamacare, a collapsing, rotten fence so warped and decrepit that ten years of whitewashing hasn’t been able to beautify it.
- Sen. Amy Klobuchar (D, MN) called these hearings a "sham" -despite their being arranged exactly the same way, under the same rules, that all recent SCOTUS nomination hearings have been. Klobuchar even attacked the timing of the appointment, as if the timing was anyone's fault but the late Justice Ruth Bader Ginsburg's. As everyone knows, Ginsburg had been on borrowed time for years, wracked by cancers on top of her old age, and should have retired long ago... but she rolled the dice, hoping to outlive the Trump presidency. She knows that they have nothing but the obstinacy of the late Justice Ginsburg to blame for the timing of these hearings.
- Sen. Chuck Schumer (D, NY) used his time to try to browbeat Judge Barrett into recusing herself from hot-button cases like Obamacare, in contradiction to the standard (and sensible, but limited) rules of judicial recusal, in the hope of blunting her effectiveness on the Court.
These hearings are not revealing much that's new about the appointee, which is exactly as one would hope; as President Trump promised, she's a fully qualified appointment, and the Senate has not discovered anything to the contrary.
But the hearings have revealed a great deal about many of our Senators. The Framers' plan, in designing this system, could not have anticipated radio and television, viral tapes of hearings, and as much attention on the Senators doing the grilling as on the nominee being grilled. But even though it wasn't their intent, the Framers' plan succeeded. Time and again, the brilliant design of the Constitutional Convention has been shown to be prescient, producing ever new gifts as time has produced unexpected changes to culture and technology. The tools the Framers gave us, that hot 1787 summer in Philadelphia, continue to bear new fruit.
In the end, barring some absolutely unimaginable shock to the system in the coming weeks, the brilliant and principled originalist, Judge Amy Coney Barrett, will be confirmed. As she clearly should be.
And America will have enjoyed a free civics lesson, by seeing once again the seriousness and honor of the players on the Right, and by witnessing yet again the shameful behavior of the players on the Left.
Some of us were nervous, when the timing of Justice Ginsburg’s death necessitated a confirmation process so close to an election. But we needn’t have worried.
The net result of these hearings is a benefit to America. We see again that the system works, and we are all reminded, as we go to vote, that half of America’s Senators have no business holding any public office whatsoever.
Copyright 2020 John F Di Leo
John F Di Leo is a Chicagoland-based trade compliance trainer, writer and actor. His columns have been published in Illinois Review since 2009.
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