Todd Zywicki has an interesting post reacting to this article by Alan Dershowitz, in which Dershowitz suggests some changes in the Senate confirmation process for Supreme Court nominees. Dershowitz argues that the Senate judiciary committee lacks the expertise to ask good questions to judicial nominees (he is certainly correct there) and that they ought to do what many other committees do and hire attorneys with constitutional expertise to do the questioning. He also argues that this would cut down on Senate posturing and preening for the cameras.
The only way to remedy these problems is to get senators out of the questioning business. I propose that the Judiciary Committee take a page from other congressional committees and hire outside lawyers to conduct their hearings. They should bring in three or four first-rate trial lawyers with backgrounds in constitutional scholarship to ask the hard questions. Of course committee members will consult with the litigators to ensure that they cover all the issues of concern to the senators. But during the hearings, the senators' job will be to listen and then to vote.
I think this is a good suggestion, and not just for the Senate. I think it would also be good for the public (at least those able to follow the discussion) to be able to see a real discussion of the issues between people who actually know what they're talking about. Zywicki takes a broader view, however, and looks at the historical advice and consent role and how the 17th amendment changed the makeup of the Senate significantly. I wonder how many Americans today even know that until the passage of that amendment, Senators were not elected by popular vote but appointed by state legislatures?
The difference is significant when you consider how the founders viewed the role of the Senate. The Senate was intended to be a body made up of the educated elite and their primary job was to act as a restraint on the passions of the people, which are easily swayed by the manipulation of politicians and the media. I disagree with Zywicki that the Senate should only consider the character and ethics of a nominee and not their views on the Constitution. In fact, I strongly disagree with that notion. It puts far too much power in the hands of the President without any check on it. But I think he has a point when he writes:
Put otherwise, I think it is an open question as to whether the Framers would have entrusted the advice and consent power to the Senate in the same manner had they known that eventually Senators would be elected directly by the people in partisan elections...
I have no doubt that's true. He makes much the same point about the power of impeachment. If the Founders had anticipated the popular election of Senators, would they have still given them the power of impeachment? Good question. Zywicki writes:
Had the Framers anticipated that Senators would later come to be directly elected, would they have entrusted to the Senate the power to conduct impeachment trials? It is not obvious to me that they would have. The performance of the Senate during the Clinton impeachment showed the way in which impeachment is now an extension of politics, rather than the Senate sitting as a sort of sober jury, relatively independent of political pressures.
I suspect he's right and I suspect the framers would not have done so had they anticipated popular election of senators. I disagree with his conclusions, but I think he's right on this part of it.
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Did the Framers also take into consideration the inherent corruption of state legislatures: the influence of the very wealthy in positioning politicians to appoint their cronies into leadership roles that insured the appointment of Senators favorable to them??? Part of what led to the 17th was this history of corruption, as well as that of the Governors who used the processes to their advantage (as in getting themselves appointed). Likewise, state legislators were elected by the people and thus merely presented a layer of representation between the people and their choice of Senator. It seems to me that any time we create additional layers in governance we spoil what is good.
I am pretty sure the framers of the constitution had no idea that the role of the federal government would become what it has. As I understand it the role of the federal goverment was to provide for a common defense and in a limited capacity regulate interstate commerce. I would not argue that the federal government should not take on larger roles that originaly intended, environmental regulation is the first example that comes to mind. But when you look at the federal government from the perspective of the framers and what they believed it's role to be, having state legislatures pick the senate, theoreticly picking scholars with the skills and honor to do the job right. The framers were also wise enough to understand that they could not see into the far future so they made it possible to alter the constitution itself to allow it to grow and change or evolve, but not lightly.
I wonder how many Americans today even know that until the passage of that amendment, Senators were not elected by popular vote but appointed by state legislatures?
In 1912 when the 17th was ratified, 29 states already selected senators by popular referendum. So the 17th was only a matter of accelerating and locking in an existing trend.
The Wikipedia article "17th amendment" is worth a read, especially for the historical context in which the amendment came to pass.
Personally, I'm very skeptical of anyone who claims that he can predict what substantive political changes would be the result of a procedural change. So I put "repeal the 17th" into the same box of crackpottery that I put "return to the gold standard."
He also argues that this would cut down on Senate posturing and preening for the cameras.
This is why it will never happen.
I think the most important aspect of having the Senate chosen by the state legislatures is that it gave the states a check on the actions of the federal government. Unfunded mandates, for instance, might be much more difficult under the old system.
As for Brock's concern about the unforseen consequences of what he calls procedural changes, it seems to me that this objection would have applied equally to the popular election of Senators. Who could have forseen that Southern Senators would be just as powerful under the new system as they had been under the old? But so it turned out. Nothing was gained, for instance, in the area of civil rights, but the Senate's old role of protecting the states against the rise of federal power was lost.
A point of confusion: was the abandonment of the gold standard a procedural change? It seems to me a rather substantive change. As for the consequences of a return to such a standard, it seems to me that the gold era was very stable as per the role of gold itself, and that any instabilities of that era owed mostly to fractional reserve banking. In the current era, shouldn't we be equally concerned about the destabalizing impact of constantly fluctuating Fed rates that are based on little more than Fed Board intuitions?