Justice selection should be done civilly

Shortly after Lee Hamilton entered the House of Representatives more than 50 years ago, he began writing regular essays for his constituents. The commentaries ranged widely in topic and often were aimed at explaining issues and congressional procedures to residents of Indiana’s 9th District.

After leaving Congress, Hamilton has continued to write essays on government. In total, he has written about 2,000 pieces so far. He has reprinted 100 in his latest book, “Congress, Presidents and American Politics” (Indiana University Press, $35).

The entries are arranged by presidency. Some comment on then-contemporary issues, such as Richard Nixon’s trip to China, Spiro Agnew’s resignation and the Reagan-Gorbachev summit. Others, despite sometimes being decades old, touch on subjects that remain vital today, such as civility in the political process, governmental reorganization and free speech.

But the death of Supreme Court Justice Antonin Scalia makes an essay wrote on Nov. 20, 1991 timely yet today. Titled “The Confirmation Process,” the piece examined the confirmation of Justice Clarence Thomas. The questions raised by the hyperpartisan environment surrounding the confirmation hearings remain vital today.

Hamilton wondered if the entire process could be refined. He writes: “Was there some way of avoiding this type of spectacle in the future?”

He first examines the fundamental constitutional questions. Under Article II, the Constitution gives the president the right to nominate justices with the advice and consent of the Senate. He goes on to assert that the hearings raised concerns about the increased politicization of the confirmation process.

But Hamilton is no hand-wringing doomsayer. He offers some solid suggestions that would do credit to both President Barack Obama and the Senate Republican leaders were they to follow them today in filling the Supreme Court vacancy.

He writes: “Today the selection of a justice is considered a life-and-death confrontation between the president and the Senate. The whole process has become too confrontational. A way must be found to encourage agreement between the president and the Senate. The president needs to take the Senate’s advice as seriously as it does its consent.

“This means the president should consult with senators about who should be nominated for the next Supreme Court vacancy. The aim should be to nominate a consensus candidate of true distinction.”

Later he writes: “Another way to encourage agreement between the president and the Senate would be for the Senate to advise the president by passing a sense-of-the-Senate resolution setting forth the professional and philosophical criteria it will use in deciding whether to confirm a future high court nominee. This would put the president on notice as to what the Senate would accept, and it would advise him that if he did not send a nominee who met the criteria, his nominee could face a confirmation battle.”

In conclusion, Hamilton writes: “Unless there is a clear disqualification of a nominee, the president is entitled to his nominee. … What has been missing is political moderation, both in the nomination by the president and the reaction by the Senate.”

In a 1987 essay celebrating the bicentennial of the Constitution, Hamilton writes: “Easily one of the most remarkable documents in the annals of history, the Constitution is unsurpassed for substance and durability. In it, power is balanced by counterpower, and authority is checked by counterauthority. A three-part federal government was set up to prevent any one arm of government from dominating the others.”

During his time in office and the years since he has left Congress, Hamilton has clearly shown he is a statesman, not a politician. As the latest Supreme Court nomination process unfolds, we all should hope the president and leaders of the Senate will listen to people such as Hamilton and act like true statesmen.

Rich Gotshall is a retired journalist and Franklin resident. Send comments to letters@dailyjournal.net.