Ted Kennedy has an op-ed in the Washington Post imploring the President to let the Senate advise. Kennedy, the high priest of liberalism, when it comes to constitutional law, doesn't seem to concern himself one iota with what the Founders intended when they wrote the Constitution. Yet his op-ed praises the "genius" of the Founders for requiring judicial appointments to be made by the Senate and President jointly. He makes specific mention about the conduct of the debate in the Constitutional Convention - noting that the Convention voted 5 times to give the appointment power to the Senate alone in an attempt to justify his unprecedented power grab.
What he fails to consider is that, in the end, the Founders chose NOT to grant the appointment power to the Senate alone. What they may have thought during debate is about as relevant as what blow-hards like Kennedy do in a committee markup - basically, not relevant at all - it's only a step in the process - it's the result that matters. A second problem with that claim, is that the Convention, for most of the summer during which they met, put off the consideration of the Executive, being unable to decide what form it should take (single person or council or magistrate with advisory council, etc.). Why would they be ready to determine what role the Executive would have in appointments when they didn't know what kind of Executive would emerge?
Finally, Kennedy fails to account for the understanding the Founders had of the respective roles of the President and the Senate in appointments as those roles were outlined in the actual Constitution. In Federalist 66, Alexander Hamilton made it clear that the power to nominate would rest solely with the President. The Senate would be limited to providing its advice and consent through there ability to vote to confirm or reject the nominee. The essay specifically states: "There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President."
In Federalist 65, Hamilton provides another insight into this area: "in the business of appointments the executive will be the principal agent." Returning to Federalist 66, we note "the Senate...will merely sanction the choice of the Executive." Moving to Federalist 76, Hamilton tells us why the Presidency is a better repository of the power to nominate than the Senate: "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even superior discernment."
Federalist 76 goes further - explaining that the compromise that occurs in collective bodies is precisely the reason why a collective body should not be entrusted with the nomination power:
The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
And Hamilton does not stop there. Going on in speaking about the Executive's nomination power he tells us:
In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment....And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
So, while the Senator's sudden discovery of the Founders' Intent is encouraging, he obviously did not take the time to truly inquire into that intent but took only those facts which were convenient to proving his point. Had he in fact learned anything about the laws and provisions that govern this process he'd realize that he, and the rest of the Senate have no claim to input into the person the President chooses to nominate - their input is to debate that nominee and vote on him or her, and only to debate and vote.
While we are here discussing the Federalist Papers, and the process of judicial appointments, I might take a moment to talk about the filibuster. While men like Senator Kennedy make a big deal about how the Founders sought to protect the minority, what they fail to recount is that minority rights were not the reason d'etre of the Constitution. Those rights were merely the flip side of the principle of majority rule. And men like Hamilton and James Madison believed in that principle. In fact a few passages from the Federalist Papers lead one to the impression that those who wrote the Constitution would be horrified at the partisan filibustering of judicial nominees.
Federalist 75: "all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority."
Federalist 58 (defending the setting of quorum at a simple majority of the members of the chamber): "In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences." (emphasis added).
So, it would appear to me, that Senator Kennedy, and the rest of the Democrat Party has been reduced to grasping at straws in the hopes of misleading the people of this country into the belief that they are entitled to some sort of say in this matter. The truth of the matter is that, the Founders would expect the President to nominate a qualified jurist without concern for the views of individual or groups of Senators. They would further expect that the Senate, after debating that nomination, would vote on the candidate in such a manner as only a simple majority of Senators would be required to approve the choice. To claim that the Founders instituted the filibuster, or created super-majority requirements to protect the minority is a bald-faced lie.
The sooner the Democrats realize that, the better off we all will be. Unfortunately, such an epiphany seems unlikely. Absent it, conservatives need to repeatedly, widely, and loudly, proclaim the words of the Founders so as to expose the Democrats for the fraudulent usurpers that they are - for the despotic minority they seek to be - and for the rebuked policies they seek to impose.