What Happened to Advice and Consent?

This is excerpted from Michael Kinsley's syndicated column

Hey, boys and girls, let’s play strict construction with the words “advice and consent.”

Conservatives believe that every word of the Constitution should be strictly construed according to its plain meaning and the original intent of the men who wrote it.

Every word, that is, except two: advice and consent. The plain meaning of these words is not hard to fathom, nor is their authors’ intent.

Senatorial advice and consent on the president’s judicial nominations was a compromise between those who thought the president should appoint judges and those who thought Congress should do it.


At least when the White House is Republican and the Senate is Democratic, however, conservatives discover all sorts of doctrines in the word “consent” that are far from clear to the naked eye.

Senators mustn’t consider the nominee’s ideology. They must never ask or consider how the nominee might vote on specific issues or cases. As for the word advice, fuggedaboudit.

At Senate Judiciary Committee hearings on Tuesday about standards for approving judicial nominations, all the energy on the conservative side was about piling limitations on the Senate’s power of consent.

Only a liberal suggested that maybe the Constitution is trying to tell us that presidents should seek the Senate’s advice in choosing his nominees.


Let’s straighten out a few concepts here. Ideology can mean the sum of your views on all political issues: welfare, taxes, trade with China, etc. Yes, of course, senators should not consider a would-be judge’s politics--except to ensure as best they can that the judge won’t consider them either in his or her rulings.

But ideology also can mean specific philosophy on judicial matters: the role of precedent, the meaning of the 14th amendment, and so on. And of course senators can and should inquire about this kind of ideology and vote yea or nay on that basis.

Conservatives generally accept this distinction. But they muddle it by presenting their own preferred judicial ideology--a flurry of bromidic phrases: judicial restraint, strict construction, original intent--as a piety beyond legitimate dispute. So any liberal challenge to a conservative nominee is automatically ideological in the bad sense, while every conservative challenge to a liberal nominee is based on philosophical principle.

The conservatives’ judicial philosophy is not beyond legitimate dispute. First of all, they themselves happily overlook it when it is inconvenient. Advice and consent is a ripe example. Affirmative action is another: Conservatives want judges to use the Constitution to overturn policies of the elected branches. They sincerely believe, no doubt, that this is a case where the Constitution speaks clearly and judicial restraint is inappropriate.

But that’s the point: Their buzzwords don’t provide an unfailing guide even for them, let alone a beacon of truth so bright that the path it illuminates is the only one worth taking. Waving a wand called “strict construction” can’t fully illuminate purposely vague phrases like “cruel and unusual.” Invoking original intent won’t tell you what the authors’ original intent was about dealing with changing circumstances.

If advice and consent is entitled to anything close to its plain, original meaning, the Senate is perfectly entitled to scrutinize nominees’ judicial philosophies and to reject some on that basis.

If President Bush doesn’t like it, he can start strictly construing the word “advice” and can really consult with senators beforehand. Scrutiny includes asking nominees their views and their reasoning about fairly specific legal issues, if not actual pending cases. Why not? After all, sitting judges write long opinions day after day telling us what they think about many issues that will come up again, but no one regards that as a problem.