Lindsey Graham and the Advice and Consent Clause

As the full Senate takes up the Kagan nomination today, which will almost certainly lead to a successful confirmation, I am still struck by Senator Lindsey Graham’s (R-SC) comments before casting his vote in the Judiciary Committee, which reported the nomination to the floor by a 13-6 vote. Sen. Graham was the lone Republican yes vote, a redux of the Sotomayor nomination. Given the political pressure from conservative groups and his Republican colleagues to vote no, as well as Graham already being on shaky ground with conservatives and Tea Party adherents, his vote should certainly be considered a principled and courageous act. It is one, among others, that could pose electoral problems for Graham down the road.

Graham’s reasoning for voting yes on Kagan was compelling, and, somewhat ironically, it rests on his constitutional interpretation of the “advice and consent” clause of Article II (the president “shall nominate, and by and with the Advice and Consent of the Senate,…Judges of the supreme court….”). What is the standard by which Supreme Court nominees are to be assessed by the Senate? To what extent does “advice and consent” entail that senators scrutinize a nominee’s ideological preferences or judicial philosophy? According to Graham:

The Constitution, in my view, puts a requirement on me as a senator to not replace my judgment for [the president’s], not to think of the hundred reasons I would pick someone differently or pick a fight with Ms. Kagan. It puts upon me a standard that stood the test of time:  Is the person qualified, is it a person of good character, are they someone that understands the difference between being a judge and a politician? And quite frankly, I think she’s passed all those tests.

Graham is essentially calling for a restoration of a standard from a bygone era. That is, there should be a presumption that a nominee will be confirmed. As long as the person is qualified and has a solid understanding of the law and the issues that come before the Court, that person should be confirmed. Rigorous scrutiny of a nominee’s ideological views and judicial philosophy is outside the realm of “advice and consent,” according to Graham. Elections have consequences, and President Obama is entitled to choose a nominee who agrees with him on various legal issues. It would take some “smoking gun” for the Senate to reject the president’s nomination. What exactly would constitute such a smoking gun is a question that is worthy of considerable debate. The “extraordinary circumstances” standard was suggested by the “Gang of 14” a few years back, and some senators still invoke that standard.

Of course, the Constitution is not at all specific about what exactly the advice and consent clause means or entails. Sen. Graham is basing his interpretation on how numerous nominations were conducted from the founding until well into the 20th century. Today, many senators obviously disagree with Graham’s standard and believe that ideology and judicial philosophy are fair game. Many who vote “no” cite those factors as justification for their votes.

Graham’s exercise in constitutional interpretation is ironic. Senators are prone to preach at judicial hearings that judges should simply do what the Constitution says. But, of course, everyone knows that the Constitution is incredibly vague and contains considerable gray area; judges have to use their judgment to fill in those holes. Here, you have a senator grappling with the gray areas of the Constitution in trying to ascertain the meaning of the advice and consent clause of the Constitution. It is not clear what this clause requires as to how and on what bases senators should scrutinize a nominee. Graham takes a highly restraintist view, while nearly all of his colleagues take a more activist view, at least in Graham’s world. While “judicial activism” is among senators’ favorite buzzwords when it comes to judicial nominations, I doubt Sen. Graham will call out his colleagues as activists on this topic.

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