Senate Judiciary Committee Established in 1816 as one of the Senate's original eleven standing committees, the Judiciary Committee quickly became a powerful influence on national legislation and, before the Civil War, played a role in spurring the adoption of the Compromise of 1850. The committee's power was later felt during the post–Civil War era when it shared jurisdiction over federal Reconstruction efforts.

Despite the committee's broad impact on national government, it is most popularly known for investigating nominees to the federal bench (see Selection of Justices). While the Constitution requires the advice and consent of the full Senate on presidential nominees, in 1868 the Senate directed that all nominations would first be referred to an appropriate committee for review. Customarily, then, the Judiciary Committee receives the president's judicial nominations from the full Senate for investigation. Afterward, the committee reports its findings and recommendations (if any) to the full Senate for a vote on the nominee.

The committee's handling of nominations has been a subject of controversy almost from the origins of that practice. Early assessments of the committee leveled the same charges that were brought against the full Senate's treatment of nominations, that it was a system rife with patronage and secrecy. Recent attention has been drawn, however, to the committee's superficial inquiry into a nominee's qualifications and the dangers posed by that practice for a competent and independent judiciary. On closer examination, the sheer number of nominees currently referred to the committee makes it improbable that a detailed inquiry may readily occur. For example, in the year 1989–1990, President George H. W. Bush nominated forty‐eight district court and eighteen appellate court judges, and in 1990 Congress created eighty‐five new federal judgeships. Under such constraints, it is not unusual for committee chairs to further delegate responsibilities to subcommittees for reviewing lower court nominees.

In the case of Supreme Court nominees, however, the full committee normally conducts a hearing. The present dispute in this setting is not the shallowness of the committee's questioning, but rather the depth and extent of its probing into the nominee's background. The furor surrounding Justice Clarence Thomas's nomination suggests to some the need to remove a nominee's personal qualities and political affiliation from the committee's scrutiny. However, the history of Supreme Court nominations shows that personal and political characteristics play a considerable role in the committee's deliberations. Of the twenty‐six persons whose nominations to the Court have been rejected or withdrawn, only five are currently seen as judicially unqualified. Indeed, vigorous opposition during hearings was brought to bear even on the nomination of such luminaries as Justice Louis Brandeis (the first Jewish nominee), Justice Hugo Black (a former Ku Klux Klan member), and Justice Felix Frankfurter (a foreign‐born, Jewish liberal). (See Nominees, Rejection of.)

But not all struggles within the committee's hearing end in triumph for the nominee. Six nominees out of forty have been rejected or withdrawn in the last sixty years. Most memorable among these is Justice Abe Fortas, President Lyndon Johnson's nominee for chief justice, who resigned from the bench amid allegations of financial misconduct. In another example, Judge Douglas Ginsburg withdrew his name after accusations surfaced of former illegal drug use. Finally, Judge Robert Bork was cast by some committee members as a rigid intellectual, and after his name was recommended unfavorably to the full Senate, President Ronald Reagan's nominee was defeated (see Nominations, Controversial).

While committee hearings concerning Supreme Court nominees have historically delved into political and personal qualifications, little precedent exists for the current state of the hearings as a national cause célèbre. For the nation's first 140 years, the nominees were rarely invited to appear before the Senate, and if they were invited, the nominees declined out of a sense of decorum. However, to answer questions regarding his actions as attorney general, Harlan Stone, in 1925, became the first nominee to appear before the committee. Next, Felix Frankfurter addressed the committee in 1939 when slanderous accusations surfaced following his nomination. Only one other justice appeared at the committee's hearing until John Harlan II's testimony in 1955. The subsequent nineteen nominees have all made statements during the committee's investigation. Because only 22 of the 147 Supreme Court nominees have been interrogated by the committee, those calling for the committee's reform in the post‐Thomas era find support in the relatively high quality of the justices approved by the Senate without personal appearances. Perhaps, after all, the committee's recent practice of inviting testimony by the nominee is not necessary for ensuring a competent and independent Supreme Court.

Whatever may be the place occupied by presidential nominees, the future of the Judiciary Committee will remain unique within American political life. Operating constitutionally as a screen on executive nominations, the committee is a fulcrum balancing the powers exerted by the coordinate branches. By nomination, presidents seek to leave a mark on a judicial institution that will far outlive their administration. The Senate's power of advice and consent acts as a veto of presidential designs. Unlike the check of legislative override, the ability to reject a judicial nominee has more than a political background. Instead, the Senate is composing a supreme and independent judicial body that itself exercises judicial review over Congress's activities. The forces at play in the Judiciary Committee, then, touch the foundation of American constitutionalism and will continue to make the committee's work, in any form, a worthy object of public attention.

Bibliography

Henry J. Abraham , Justices and Presidents, 3d ed. (1991).
Robert C. Byrd , The Senate (1789–1989): Addresses on the History of the United States Senate, edited by Wendy Wolf (1989).

Kermit L. Hall and and Mitchell S. Ritchie

SENATE JUDICIARY COMMITTEE

The U.S. Senate established the Committee on the Judiciary on December 10, 1816, as one of the original 11 standing committees. It is also one of the most powerful committees in Congress; among its wide range of jurisdictions is investigation of federal judicial nominees and oversight of criminal justice, antitrust, and intellectual property legislation. Meeting each year since the Fourteenth Congress, the Judiciary Committee reviews a vast range of legal issues and advises the larger Senate on how to handle them. Just like any other congressional committee, it cannot pass laws or approve presidential nominees on its own, but its recommendations are highly regarded by the larger body.

Historically, initial issues before the Senate Judiciary Committee centered largely on the widespread western expansion and growth of the nation, with corresponding concerns about the role of the federal judiciary and judicial administration. Boundary disputes between states were another early concern. The issue of slavery was perhaps the most controversial, however. The committee was partially responsible for the enactment of the compromise of 1850, which included the fugitive slave act. Also, after the Civil War, beginning in 1868, the committee shared jurisdiction to oversee federal reconstruction.

The authority to investigate nominees to the federal court system is the most powerful and controversial authority delegated to the committee. Although the U.S. Constitution grants authority to the full Senate to approve judges nominated by the president, the Senate has delegated much of this responsibility to the committee since 1868. When the president submits judicial nominations, the Senate immediately submits them to the committee for consideration. The committee votes whether to approve or disapprove a nomination of a judge, and it votes whether to submit the nomination to the full Senate for its consideration. Both votes require a majority of the members of the committee. If the Senate approves a judge, he or she receives lifetime tenure on the federal bench, barring impeachment or retirement.

The nomination process of federal judges traditionally has caused a significant amount of controversy regarding the criteria that are used by committee members in determining whether to approve or disapprove a judicial nominee. Some commentators suggest that the nomination process should only involve considerations of ethics and professional competence, while others argue that the real considerations among committee members relate to the ideologies and philosophies of the nominees.

When President ronald reagan nominated robert bork in 1987 to fill a vacancy on the U.S. Supreme Court, it was evident from the questioning during the nomination hearing that the senators took numerous factors into account. Bork, who had been a judge on the U.S. Court of Appeals for the District of Columbia and known for his conservative views, was selected by the Republican president to replace Justice lewis powell, whose views were more moderate. Both the committee and the full Senate eventually turned down Bork's nomination, based largely on ideology. Public-interest groups supporting or opposing Bork spent a reported $20 million in their attempts to influence the nomination. Similar questions of ideology and philosophy have been raised about the 1991 confirmation hearings for Justice clarence thomas.

The publicity surrounding the nomination process in the federal judiciary did not begin until the twentieth century. Historically, few nominees appeared before the committee. Several high-profile nominees, including louis brandeis, hugo black, and felix frankfurter, offered statements for the committee to consider. It is now common for all nominees to make statements before the committee.

With a high number of nominations to the federal judiciary, it is not uncommon for the committee to send nominations of judges in lower courts to subcommittees. This process continues to be lengthy.

Other areas of jurisdiction of the committee include legislative oversight of apportionment of representatives; bankruptcy; mutiny, espionage, and counterfeiting; civil liberties; constitutional amendments; government information; holidays and celebrations; immigration and naturalization; interstate compacts; local courts in territories and possessions of the United States; national penitentiaries; patents, copyrights, and trademarks; protection of trade and commerce against unlawful restraints and monopolies; and state and territory boundary lines.

After the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 (Seeseptember 11th attacks), the Judiciary Committee held a number of hearings on the issues of terrorism and homeland defense. The committee also has taken an active role in such social issues as civil rights protection, law enforcement, and reform of the criminal justice system. Controversies in 2001 extended to the cabinet nominees, including the position of attorney general. When Presidentgeorge w. bush nominated then-Senator john ashcroft (R-Mo.) for the position in 2001, Senator Patrick Leahy (D-Vt.) immediately indicated that he would oppose the confirmation. While Ashcroft was eventually confirmed, he also was required to appear before the committee numerous times throughout 2001 to report on issues involving the Attorney General's Office and the justice department.

further readings

Denning, Brannon P. 2002. "The Judicial Confirmation Process and the Blue Slip." Judicature 85 (March-April).

National Archives and Records Administration. "Records of the Committee on the Judiciary and Related Committees." Available at <www.archives.gov/nara/legislative/senate_guide/sgch13.html> (accessed May 16, 2002).

Nourse, Victoria F, and Jane S. Schacter. 2002. "The Politics of Legislative Drafting: A Congressional Case Study." New York University Law Review 77 (June).

Ralph Nader Congress Project. 1975. The Judiciary Committees: A Study of the House and Senate Judiciary Committees. New York: Grossman.

U.S. Senate. "United States Senate Committee on the Judiciary." Available online at <www.senate.gov/~judiciary/information.cfm> (accessed June 24, 2002).