Advice and Consent in Theory and Practice
ROGER J. MINER Judge, United States Court of Appeals, Second Circuit
Article II, Section 2 of the Constitution requires that the President of the United States nominate and, by and with the advice and consent of the Senate, appoint the federal judges who will exercise the judicial power conferred under the authority of Article III of the Constitution. Today, that constitutional command is all but ignored. The President has abdicated his duty to nominate, the Senate provides no advice whatsoever, and the function of senatorial consent is a mere formality in most instances. As regards the appointment of federal judges, the Constitution simply is not working as the Framers intended. That this should be so at a time [in 1992] when the appointment process is in the hands of those who profess a blind adherence to the doctrine of original intent is strange indeed. The difficulty of discerning the original intent of the Framers has been expounded upon at great length and need not be reexamined. I do pause to note that former Senator Eugene McCarthy recently spoke of his support for the constitutional right of the citizenry to bear arms, as long as the arms are of the type in use when the Constitution was written. 1 So much for originalism as a general proposition.
We know that the constitutional provision came about through compromise. Listen to the debates, summarized as follows in the records of the Constitutional Convention:
Mr. L. Martin was strenuous for an appt. by the 2d. branch [of the National Legislature]. Being taken from all the States it wd. be best informed of characters & most capable of making a fit choice. 2
Mr. Sherman concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the [Senate] than by the Executive. 3