Why is senatorial courtesy important

Save my name, email, and website in this browser for the next time I comment. Nomination of Benjamin Fishbourn and others to be Port Collectors, etc. Records of the U. Senate, National Archives Two hundred and twenty-five years ago, on August 3, , President George Washington sent the Senate a seven-page list of nominees for port collectors. Whipple, April 11, Senate, National Archives The chairperson of the Senate Judiciary Committee sends a blue slip to the home state senators of a nominee for positions such as judge, attorney, or marshal.

Share this: Twitter Facebook. Previous post An Inaugural Blunder. Leave a Reply Cancel reply Your email address will not be published. On the one side were men such as Elbridge Gerry of Massachusetts and Benjamin Franklin of Pennsylvania who worried most about vesting too much power in the hands of a single individual.

Franklin said that he was concerned that "The Executive will always be increasing, here as elsewhere, til it end in Monarchy. Their counterparts, men like James Madison of Virginia, James Wilson of Pennsylvania, and Alexander Hamilton of New York, wanted a strong executive with ultimate responsibility for choosing members of his administration, and who would not be as indebted to factions as they believed Senators might. During the course of the debate and the many drafts of the Constitution, the power to nominate flowed from the President to the Senate and back.

The final version of the phrase was defeated twice during the Convention before it was adopted on September 7, Hamilton believed that the clause gave the Senate a negative power, that of withholding its approval, which members would use only infrequently.

It will be the office of the President to nominate , and with the advice and consent of the Senate to appoint. There will, of course, be no exertion of choice on the part of the Senators. They may defeat one choice of the Executive and oblige him to make another; but they cannot themselves choose —they can only ratify or reject the choice of the President.

John Adams, however, thought the Senate would play a far bigger role. In a letter to Thomas Jefferson in , Adams wrote that:. You are apprehensive of monarchy, I of aristocracy. I would therefore, have given more power to the president, and less to the senate.

The nomination and appointment to all offices I would have given to the President, assisted only by a privy council of his own creation; but not a vote or voice would I have given the Senate or any senator unless he were of the privy council. Faction and distraction are the sure and certain consequences of giving to a senate a vote on the distribution of offices. With such varied interpretations of the meaning of the phrase at its creation, it is no wonder that the proper role of the Senate in the nomination and confirmation process has been much disputed ever since.

Gerhardt, "the Senate's official functions or duties in the appointments process are not so clear. The Senate has played a large role in the process during some administrations and a lesser role in others, which has been largely a function of the President's ability to translate his power into influence with Congress.

Some Presidents, such as Thomas Jefferson, were able to both win confirmation of most of their nominees while largely retaining control over the choice of nominee. Others, such as President Abraham Lincoln, decided to share the power with the Senate, retaining sufficient influence over the positions to reap the rewards of patronage while giving the Senate enough authority to prevent many confirmation fights.

Some Presidents, such as John Tyler, spent most of their tenure losing battle after battle to the Senate over confirmations. While much attention is paid to those who did not win confirmation by the Senate, most nominees do make it through the process.

That impression is, in fact, mistaken," wrote congressional scholar Sarah A. Traditionally, the Senate has exerted the most influence over the appointment of federal judges, members of the Supreme Court, and independent agencies. The Senate has usually given a President wider latitude in selecting members of his Cabinet. Since , of the nominations to the Supreme Court, were confirmed and served.

Seven of the remaining 44 were confirmed but refused the position, one died before he could take office, and 36 nominations were not confirmed. During the same time period, the Senate failed to confirm 15 Cabinet nominees out of the hundreds who have been nominated, the last being the nomination of former Senator John G.

Over time, the Senate has developed or adapted practices to deal with the confirmation process, none of which are explicitly contained in Senate rules but all of which have been adhered to and recognized by the chamber at one time or another.

These traditions emanate from a desire on the part of Senators to be involved not only in passing judgment on nominations but also in the actual selection of the nominee in the first place, particularly for federal judges. While Hamilton and others did not foresee this as the way the Senate would operate, it nevertheless became the norm for the Senate. In the course of time, the practice of consulting members of the Senate about appointments in their states was transformed into the custom of permitting them to name the person to be appointed, with the President retaining only a veto over their recommendations.

When a vacancy on the federal bench occurs, "the attorney general, usually through his deputies, undertakes a search for possible nominees. At this early stage, the senators of the president's party are usually brought into the process. They may have their own nominee or slate of nominees, or they may elect at this point to reserve judgment, preferring to react to the deputy attorney general's nominees.

In any case, their role is crucial, some say determinative. Through the custom of senatorial courtesy, the senators may exercise a virtual veto over the president's choice. The extent and nature of this exercise of power varies considerably with the senator: some prefer wide consultation with state and local interests, giving those interests in effect the power of choice in return, of course, for favors rendered ; others jealously fight for this power to virtually dictate the choice of a particular nominee.

Much of the process is informal and takes place behind closed doors, and not much has been written about it. From what has been written, it is clear that each state's process differs, as does each President's policy about consulting Senators. Some state delegations have agreements among office-holders about how the judicial selection process is to work.

In others, there are commissions which are involved in the selection process, while in some states, there is no agreement at all. Since the first Congress, when Senators felt their desires were not being taken into account by the President, they developed institutional processes to make their displeasure known and protect what they saw as their role in the process.

First, there developed the tradition of "senatorial courtesy," by which Senators could block confirmation of the confirmation of individuals from their home states. Along the same lines is the "blue slip," a tradition emanating from the Judiciary Committee, which can allow a home-state Senator to block a judicial nomination. Also, Senators have used the informal tradition of "holds" to prevent or delay the Senate from acting on a nomination.

Senators also have used the tool of extended debate, known as a filibuster, to delay or prevent a nominee from being confirmed. There are other tools that the Senate has used less frequently, such as changing the qualifications needed to do a job or doing away with a position entirely. Some scholars have suggested that Congress deliberately reduced the number of positions on the Supreme Court to prevent President Andrew Johnson from winning confirmation of his nomination of Henry Stanbery to be an associate justice.

No mention was made of this purpose during the debate on the law which shrank the court to six members from eight, but the size of the court was increased back to eight within two months of a new President taking office. Finally, it is within the discretion of the chair of a committee whether to hold a hearing on a nomination.

One of the key ways a nomination dies is with no public action. The development of these practices is in keeping with what some Senators believe is the proper role of the Senate in the nomination and confirmation process.

The American Constitution does not assign different weights to the President's nominating power and the Senate's decision as to whether it shall 'advise and consent' to the confirmation of nominations. Instead, it establishes a process whereby the principal positions in our government can only be filled when the President and the Senate act jointly. Thus, from the time of our Founders, the Senate has been a vital partner in the process of evaluating candidates for service in high government positions.

Senator Robert P. And, he continued:. That action in said to the President then in office and to future Presidents: 'Don't expect the Senate to be a rubberstamp. We have an independent coequal responsibility in the appointing process; and we intend to exercise that responsibility, as those who drafted the Constitution so clearly intended.

Clearly then, our responsibility is merely to evaluate the qualifications of the nominee and to record our pleasure or displeasure; to give our advice and consent or our advice and dissent. In characterizing Senate practice, political scientist Gerhardt noted, "The combination of the means available to individual senators to delay nominations, including but not limited to indefinite holds, filibusters, and special procedures … provides individual senators with substantial means to impede a president's nominating authority.

Three months into the first Senate session, Senators rebuffed President George Washington on his nomination of Benjamin Fishbourn to be a naval officer of the Port of Savannah, Georgia. Senators had no objection to the individual Washington had selected; rather, they were responding to the two Senators from Georgia, who had wanted to give the job to someone else.

After Fishbourn was rejected, Washington submitted the individual preferred by the Georgia Senators, who was promptly confirmed. That was the first example of something that has come to be called "senatorial courtesy.

Senators have also used the concept of "courtesy" to block a nominee of a President from another party, if the concerned Senator was in the majority in the chamber.

Though an unwritten tradition, senatorial courtesy has been honored, to some degree or another, by most Presidents. The strength of the tradition comes from the idea that courtesy means one Senator will honor the objections of another to a nomination in the first Senator's home state:.

In its general application this fair phrase has come to signify deference, not to the President nor the public interest, but to the wishes of one's colleagues—a courtesy of the Senate, for the Senate and by the Senate. In general practice this understanding or gentleman's agreement has seemed to reduce to this: Nominations from a given state are not to be confirmed unless they have received the approval of the Senators of the President's party from that state, other Senators following their lead in the attitude they take toward such nominations.

Senators can invoke senatorial courtesy at any point in the process, such as a hearing or on the floor of the Senate.

Historically, a Senator has stood on the floor of the chamber and said that the nomination was "personally obnoxious" to him. Frequently, that pronouncement was sufficient to kill the nomination. Roberts to be a district judge in Virginia in He did so even though the state's two Senators opposed the nomination. Byrd D-VA said:. It is my sincere and honest conviction that this nomination was made for the purpose of being personally offensive to the Virginia Senators, and it is personally offensive to the Virginia Senators, and is personally obnoxious to me, as well as to my colleague.

The Senate rejected the nomination by a vote of There has been disagreement within the Senate about whether or not a Senator needs to state the grounds for an objection. During a debate on the nomination of Daniel D. Moore to be collector of internal revenue in Louisiana, Senator Huey Long said: "I first state to the Senate that this nomination is offensive to me personally. I have never held the duty to be imposed upon any Member of the Senate to justify his reasons for stating that a nomination was personally obnoxious to him.

They want to avoid antagonizing those involved in selecting nominees. Habeas corpus rights imply that prisoners have a right to know what charges are being made against them. A writ of habeas corpus is used to bring a prisoner or other detainee e. A habeas petition proceeds as a civil action against the State agent usually a warden who holds the defendant in custody.