Channels, Fall 2019

Page 20 Wilt • It Wasn’t Supposed to be Easy dominate the process, and “the intrinsic merit of the candidate will be too often out of sight” (No. 76). Hamilton provides four areas for the Senate to consider for review. He ensures that the Senate’s check upon the president in appointing persons to the Supreme Court and other offices would have a “silent operation” that would serve as an “excellent check upon a spirit of favoritism in the president” (No. 76). Moreover, the Senate’s advice and consent check would “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view of popularity” (No. 76). Such a pronouncement has profound implications for the Supreme Court confirmation process. It should be stressed that Hamilton did not mention political allegiance, constitutional philosophy, or even general ideology as reasons to oppose a nominee. Therefore, the absence speaks volumes in terms of general acceptance of these aspects in moderation for Supreme Court nomination considerations. In order to counteract extreme partisan politics from overcoming the system, Hamilton even includes the notion that popularity should not play a factor in supporting a Supreme Court nominee. Hamilton uses the word ‘popularity’ to also refer to candidates who may be politically expedient or popular, but unfit to serve on the Court given their lack of experience. Also, Hamilton makes the case for presidential preference in the selection of the judicial nominee. Hamilton argues that, though the Senate must confer approval upon the nominee, the eventual appointee to the office in any case will come from the president’s preference in the end, “though perhaps not in the first degree,” Hamilton writes (No. 76). He asserts that because the Senate can reject the nominee, “the danger to his own reputation”—both politically and personally—would motivate the president to take special care in appointing a strong candidate (No. 76). Hamilton rejects patronage arguments as the Senate would have no benefit to “confer” upon the president (No. 77). Rather, the Senate’s ability to influence the president would rest solely in “restraining” the president (No. 77). In other words, Hamilton notes that the Senate’s ability to reject a nominee would have such an effect as to fully check the president. Regarding responsibility, Hamilton wrote the following: “The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate” (No. 77). In all, it is imperative to note that Hamilton confers the ability of the Senate to review the nominee’s fitness for the office, approve the nominee, or fully check the president by rejecting the nominee. The Federalist Papers’ timely warnings are a harbinger of confirmation processes to come. The difficulty in reviewing the exhaustive amount of data within the Federalist Papers is the lack of direct discussion on specific reasons for the Senate’s rejecting of the nominee—save for presidential favoritism, state preference, familial linkage, or against general popularity. Moreover, Hamilton does not discuss ways to review the nominee, specifically what could be “fair game” within that review process. Therefore, it is safe to assume that since the Founders afforded the Senate and House each discretion in establishing their own chamber rules and procedures, Hamilton understood the Senate would broadly and strongly hold its discretionary powers within the context of appointment. Early Writings Various other writings serve as important indicators in ascertaining the original meaning behind advice and consent as considered by the Founders. Various individuals—former Constitutional