The Constitution and the Appointment

PRESIDENT NIXON'S eleventh-hour attempt to stave off rejection of the Carswell nomination was an unusual effort to equate Senate opposition to the President's will with an attack on presidential powers and a threat to the system of checks and balances.

Nixon wrote: "What is centrally at issue is the constitutional responsibility of the President to appoint members of the court--and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or their own subjective judgment" for his. Senate opponents, Nixon argued, were out of bounds in resisting Carswell simply because they felt that there could have been a better choice. He also complained that the opposition Senators were trying to deny him appointment rights that had always been accorded to Presidents of both parties.

At best, the President's letter contained a dubious view of the Senate's constitutional role. The Constitution states that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court." The responsibility to propose is the President's alone; the power to dispose is shared.

There were few defenders of the President's letter in the Senate, even among Carswell supporters. Constitutional-law experts also criticized Nixon's reasoning. "Presidential carte blanche is repudiated by the very words of the Constitution," said Francis Allen, dean of the University of Michigan law school. Added Philip Kurland, constitutional-law expert at the University of Chicago: "It is quite clear in the Constitution that the President and the legislature are responsible for creating a third, coequal branch (of Government)."

When bemoaning the Senators' "own philosophy" and "subjective judgment," Nixon was also on questionable ground. A legislator who ignored his own convictions and feelings would be a poor specimen. And while Nixon may not feel that the charges against Carswell are supportable, his Senate opponents certainly do.

Nixon, of course, is not alone among Presidents in having court nominees challenged. Of the previous 127 nominations to the Supreme Court, 22 were turned down by Congress. President John Tyler had four nominees rejected in two years, Grover Cleveland two in 1894. As for the matter of encroaching on presidential prerogatives, it was just two years ago that Candidate Nixon was successfully arguing that Lyndon Johnson, as a lame duck, ought not exercise his appointment powers by naming Earl Warren's successor.

There is, of course, a widely held belief that the Senate should not deny a presidential appointment unless the individual in question can be proved to have grave and tangible disqualifications. That is more appropriate for Cabinet members and ambassadors than Supreme Court Justices. Certainly a President is entitled to choose the men who will work for him--though the Constitution gives the Senate a veto power. But a Supreme Court Justice serves the nation, not the President, and, unlike political subordinates, usually remains on the bench long after the man who nominated him has retired.

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