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The Expanding Presidency And [extract]

Date : 19/10/2011

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James

Uploaded by : James
Uploaded on : 19/10/2011
Subject : Politics

The Expanding Presidency and Judicial Selection: a Closer Look at the 'peaceful' Supreme Court nominations, 1895-1967

James Heath London Metropolitan University

Much of the existing literature on the relationship between Presidents and senators in the nomination of Supreme Court justices is concerned with fluctuating levels of conflict, but little attention has been paid to the emergence of a lengthy period in which Presidents achieved remarkable success in getting their nominees confirmed. This period, lasting from 1895 to 1967, witnessed 'a remarkable about-face from the preceding eighty years', during which the Senate had rejected nominees on a regular basis (Comiskey, 2004, p. 9). It has been argued that, from 1895, senators were less inclined to obstruct a President's nominations because of their increasing respect for the presidency and respect for the Supreme Court itself (Friedman, 1983), and also because 'senators are predisposed to vote for confirmation' (Songer, 1979, p. 929), resulting in a 'presumption of confirmation' (Sulfrigde, 1980, p. 560). This article makes the case that the lengthy period of successful nominations resulted largely from a skilful use of presidential resources, and not necessarily from 'the overriding political power of the modern presidency' (Monaghan, 1988, pp. 1202-3). It will also be argued that the low number of Senate rejections of nominees does not necessarily indicate a lack of senatorial will, scrutiny or assertiveness in the separation of powers.

The role of the Senate: declining power?

The case for senatorial deference has been made by a number of scholars, but not all of the examples cited provide a convincing case. For instance, when Friedman (1983) compared the unsuccessful nomination of Thomas Stanley Matthews in 1881 with the successful nomination of William Moody in 1906, he claimed that a 'controversial' nominee such as Moody was able to win an easy Senate confirmation in 1906, but a similarly controversial nominee would have been rejected twenty-five years earlier, as in the case of Matthews in 1881 - thus, Senate resistance to controversial judicial nominations declined throughout the period of 1881 to 1906. However, if one considers other nominations made throughout this period, there is little to support this argument: 1887 marked the hotly-contested nomination of Lucius Lamar by President Grover Cleveland; in 1888, there was significant opposition to Cleveland's nomination of Melville Fuller; in 1894, the Senate rejected two of Cleveland's nominees in a row, and the early 1900s saw some very cautious nominations from President Theodore Roosevelt (Garraty, 1949). Even if it can be established that senatorial influence declined, it cannot be proved that senators were deprived of the power needed to force a nominee's rejection: Friedman concedes that Senator David B Hill of New York was able to 'catalyze the brewing opposition to Cleveland' through 'the perceived senatorial prerogative' (Friedman, 1983, p. 52n) to ensure the rejection of William Hornblower. The rejections of Hornblower and another Cleveland nominee, Wheeler Peckham, suggest that, as late as 1894, senators were not prepared to allow a President carte blanche in naming judges from their own circuit if they felt entitled to provide their advice and consent. Furthermore, the principle of 'senatorial courtesy' - whereby the senators from a nominee's home state were consulted for their approval prior to the formal announcement of the nomination - was still relevant as late as 1902, when President Theodore Roosevelt consulted the two Massachusetts senators when making his nomination of Oliver Wendell Holmes (Garraty, 1949).

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