By the time you read this, the Senate of the United States will probably have confirmed Neil Gorsuch as an associate justice of the Supreme Court. Whether you like him or not, his appointment would be good news for America — I think — and would return us, if only briefly, to Jefferson's reading of the United States Constitution.
Elections matter.
Because of that, according to Jefferson, the President of the United States is entitled to surround himself with men of his own political stamp. Jefferson believed that the Senate's proper constitutional role in these situations — to advise and consent — is not to determine whether it likes the judicial philosophy of the nominee or his politics, or whether they might have preferred somebody else. The Senate's role, as Jefferson understood it, was merely to determine whether the nominee is fit for the office. Jefferson believed that if the president nominates a lightweight, the Senate should decline to consent. But if the candidate is qualified, the duty of the Senate is to consent with the president's wishes.
Elections matter.
When you vote for president, you are also voting for his cabinet, his White House staff, his level of enforcement of the laws on the books, indeed, for his likely executive orders, and for his or her nominations to the U.S. court system, including the Supreme Court. That's how things were, more or less, until President Reagan's nomination of Robert Bork in 1987. Bork was a brilliant, brash, arrogant, outspoken jurist with a take-no-prisoners attitude, and a record of not being very sympathetic to the rights of women and minorities. Soon enough, however, Anthony Kennedy was nominated for that seat and confirmed without fanfare. Kennedy has been an extremely important centrist — and swing vote — on the court for thirty years. Since the Bork debacle, the Senate has played an increasingly partisan and meddling role in the filling of Supreme Court positions. Most candidates still move pretty comfortably into their life-tenured positions, but they all get roughed-up more than the Founders intended, asked pointless questions about litmus tests and hypothetical future cases, that they are now perfectly groomed not to answer — and a few, like Clarence Thomas, subjected to what his detractor's regarded as a well-deserved ordeal but he famously characterized as a "high-tech lynching".
Elections matter.
I feel that it is time to swing the pendulum back towards Mr. Jefferson's view that it is not the Senate that appoints judicial officers, but the victorious President of the United States. What the Republican Senate did to Merrick Garland was, in my opinion, obscene and unconscionable. I hope the Democrats in the Senate have behaved more responsibly towards nominee Gorsuch. Jefferson objected strenuously when his predecessor, John Adams, packed the federal court system in the very last days of his administration, with high Federalists who disliked Jefferson politically and personally and who made it their mission to prevent him from making any radical adjustments to the American republic.
Who knows what kind of justice Gorsuch will be. My point is that justices, once installed, frequently turn out to be wonderfully independent of the men who appoint them. President Dwight D. Eisenhower said, if we can believe the story, "I made only two mistakes as president and both of them are on the Supreme Court."
The photograph of the Supreme Court Building in Washington, D.C. by Arthur Rothstein, 1936, is from the New York Public Library Digital Collections.
Dr. Lindsay Chervinsky and Clay Jenkinson present ten things about the Supreme Court.
Thomas Jefferson practiced law from 1767 until early 1774. Much of his work involved land disputes, however one case in April of 1770 found him acting pro bono defending Samuel Howell, a mixed-race man being held as an indentured servant because his grandmother was white and his grandfather black. He lost the case, but argued that “under the law of nature, all men are born free.” This week Jefferson (as portrayed by humanities scholar Clay S. Jenkinson) answers questions submitted to him by an incarcerated person.
Jefferson tells us that Article Three of the Constitution contemplates a court system, but that it is quite vague and general, so the first Congress passed the Judiciary Act of 1789 which was intended to create the infrastructure of the Judicial system. George Washington then filled every available seat through appointment.
We have added a call in line at jeffersonhour.com for listeners to leave questions they would like answered, and this week on the Thomas Jefferson Hour we listen to our listeners. Five questions are answered, including thoughts on Jefferson and slavery, Jefferson and John Adams, appointments of judges and the nature of historiography. We also get to hear Clay’s impersonation of how Jefferson might sound ordering a pizza.