In the dispute between the White House and the Senate over whether the Senate should hold hearings on the nomination of Merrick Garland to the Supreme Court, Alexander Hamilton has something to say. Seth Lipsky writing in the NY Post insists that Hamilton’s views on judicial appointments have been vindicated. Hamilton was one of the three writers of the Federalist Papers, which were produced to encourage adoption of the new Constitution. Lipsky references Federalist 69, which Hamilton penned, noting the power of the president as inferior to that of a monarch, and emphasizing “with the advice and consent of the Senate” when referring to judicial and other appointments.
Kevin Whitson references Lipsky in his piece at Western Journalism, echoing the notion that the Senate is the real power in approving appointments. Jason Pye at Freedom Works takes up the argument, referencing Hamilton’s arguments in the Federalist 76. There, Hamilton argues that appointments can be made in three ways, by a single person, which is not optimal; by an assembly, which leads to trading amongst its members, also not optimal; and by a single person, the President, with the consent of an assembly. This latter is what has been written into the Constitution.
Adam Brandon at Red State refers to Joe Biden’s statement in 1992 that Bush should not appoint a replacement to the Supreme Court in an election year, demonstrating the hypocrisy of the Democrats in now decrying Republicans parroting Biden’s position. Biden was the chair of the Senate Judiciary Committee, tasked with considering a nomination to the Supreme Court (there actually was no vacancy in 1992; Clarence Thomas had been confirmed in Oct 1991). Republicans should clearly not do what the Biden Judiciary committee did in a previous election year, and hold hearings as was done when Reagan nominated Justice Kennedy for confirmation during the election year 1988, and forward the nomination to the floor of the Senate. (There, without a Democratic filibuster, Kennedy was confirmed.) Brandon also references the reprehensible Senate rejection of Robert Bork and an Obama collusion in a failed filibuster of Samuel Alito in 2005. That Democrats would allow the Biden Senate Judiciary Committee to consider the Bork nomination, to forward it to the full Senate floor for an up-or-down vote even while voting against the nomination in committee, and not filibuster it but allow hearings where Bork was able to forcefully present his judicial philosophy to the Senators and the public, is no reason that the Senate in 2016 should likewise take up the nomination of Merrick Garland. Just as the Senate had no right to exercise advise and consent in rejecting the Bork nomination, the Obama administration has no right to insist on the Senate providing advice and consent on this nomination.
Conservatives can point to precedent in rejecting even the consideration of a Supreme Court nominee. Harriet Miers was nominated by George Bush in 2005, and though she was granted meetings with the Senate Judiciary Committee, had to withdraw her nomination in the face of bipartisan opposition. Similarly, in the only other case in US history, the Senate also refused to take up Millard Fillmore’s nomination of William C. Micou, in Feb 1853, after the election of 1852 and one month before Fillmore was to leave office (Presidents were inaugurated in March in those days; Franklin Pierce was inaugurated in Mar 1853).
Nevertheless, conservatives should be somewhat taken aback by the irony of quoting Hamilton to further their views on the subject. It is Hamilton, after all, who argued most forcefully for a strong central government, and for a unitary executive who would have the ‘energy’ to guide the nation. It is equally ironic to quote Federalist 69, where Hamilton is trying to put a damper on concerns that the strong executive he has promoted would exercise monarchical powers, particularly when, in Federalist 70, he argues more forcefully for a strong executive.
Nonetheless, in this case, conservatives are more than justified in refusing to consider a Supreme Court nomination, and in referencing Hamilton to support their cause, because at least in this one case, Hamilton finally got it right.