As Washington debates whether the Senate should consider President Obama’s nominee for Supreme Court, both sides point to our founders’ intentions to make their points. But the writers of our Constitution were arguably just as divided about how the process works (or should work).
Over two sweltering July days at the Constitutional Convention in 1787 in Philadelphia, they vacillated about how much power to give Congress and the president over determining who would be justices to the Supreme Court. At one point, it looked as if they had decided to give most — if not all — of the power to appoint justices to the Senate.
Through the debate, they had one overarching goal: To find the process most likely to fill the court with the most level-headed, reasonable, least-partisan justices as possible.
“They didn’t want factionalism,” said Martin Flaherty, a law professor with Fordham Law School. “They wanted a highly qualified candidate.”
It’s illuminating to think the Founding Fathers didn’t have all the answers, said Adam Rothman, a history professor with Georgetown University.
“Today, we think everything under the Constitution is almost sacrosanct,” he said. “But there were so many options.”
When looking to the past to make a point, Flaherty said, it’s also important to note that our founders were drafting the Constitution in a very different political landscape. The two-party system we have today just didn’t exist. They were operating in a world where leveraging the power of the institution — be it Congress or the president or the Supreme Court — mattered more than leveraging party politics. Today, you could argue the opposite is true.
Anyway, with those caveats, here’s a look at how the Senate very nearly came to be the chamber that appoints Supreme Court justices:
At the convention, James Madison argued the president should have the power to nominate and confirm a justice. Under his proposal, the Senate would only have the power to intervene with a veto. His argument was that the president should be a sufficiently national figure so he (or she) would be able to leave politics of the decision. Today, the practical implications of this would be that the Senate would have to act on Merrick Garland’s nomination — to stop it — rather than avoiding it altogether.
Others countered that letting the president appoint justices to the Supreme Court would give the executive branch too much power. So they said the Senate (or, more accurately, the upper house, because the Senate as it exists today had yet to be formed) should have full responsibility to nominate justices.
George Mason even jumped in with an idea that the nominee should originate from both chambers of Congress. But the founders largely rejected that on the grounds the lower chamber would be too populist and regionally focused to make a reasonable decision.
Nathaniel Gorham proposed a compromise: Let the president pick the nominee and give the Senate power to advise and consent.
After two full days of debate, the founders voted on how to set up the Supreme Court. Madison’s idea to give the president most of the power failed 6-3. The proposal to give the upper house most of the power passed 6-3. Gorham’s proposal — the one the country uses now — was actually tabled. And so the founders left their July brainstorming session with a tentative agreement to give the Senate the power to appoint people to the Supreme Court.
They took a break while the Constitution got drafted and met up a month later to go over it line by line.
When they separated into committees to tackle it, the committee in charge of this section of the Constitution decided to split power for Supreme Court justices between the president and the Senate. There are no records of the debate, Flaherty said, but this particular committee moved a lot of powers to the president with the reasoning the president was the only truly nationally elected figure in the nation. (This is the same committee that created the somewhat-controversial Electoral College.)
On Sept. 7, the system the country has now for choosing Supreme Court justices was approved. And that was that.
Or not. Even after the Constitution was signed and sealed, the founders continued to have debates about the best way forward, including how to set up the judicial branch. And it’s important to remember that nothing in the United States has ever been free from political debate or even immune to politics itself.
“Anybody who thinks there was a golden age when the judiciary was not completely infused with politics is delusional,” Rothman said.
P.S.: If you’re really interested in how this debate went down, Flaherty suggests you check out Max Farrand’s “The Records of the Federal Convention of 1787, vol. 2”, which is available online.