Friday, October 18, 2019

1 IN 8: A Look at Failed Nominations to the Supreme Court

By: Robert F. McQueen
Robert F. McQueen graduated from Albany Law School in 2019.  He received his bachelor’s degree in The Study of History from Iona College, during which time he spent a semester abroad at the Marino Institute of Education in Dublin, Ireland.  The experiences of his semester abroad ignited a deep love for international travel; he has since visited a total of forty nations spanning five continents.
Prior to attending law school, he worked for eight years in the billing department of an environmental engineer firm.  During his time at Albany Law School, Robert was an active member in many of the school’s student organizations. He served as a 2L and then 3L Class Senator on the Student Bar Association, where he used his voice and vote to advocate for the greater funding of law school events; he played on the school’s rugby team for all three years, which elected him, twice, to serve as their Director of Marketing; he co-founded the Albany Law School Gaelic Law Society, for which he was elected the club’s first Vice-President and second President; and he was even granted an honorary seat to serve as the Social Director of the International Law Society.

The United States Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”  This provision of the Constitution has had a straightforward, plain-reading interpretation: it is the duty of the President to choose and nominate candidates for the Supreme Court; and a majority vote in the Senate provides its consent of the nominations (presumably, but not necessarily, having tendered advice along the way).  Alternatively, the Senate can deny consent either with a vote rejecting a nomination, or by refusing to take any action on a nomination.

A great amount of debate occurred at the Constitutional Convention regarding the methodology and criteria for court appointments, which ultimately led to the adoption of the language used in Article II, Section 2.  The convention delegates seem to have assumed: judicial candidates would be selected and confirmed, based on their individual merit rather than favoritism.  John Adams—absent at the Constitutional Convention—was the only Founding Father to rightfully foresee the future rise of political parties; and, that partisan dynamics rather than merit alone would become a controlling consideration as to whether or not the Senate confirms a particular nomination.

To read the paper, open HERE.