In Plato’s Republic, Socrates claims that the human soul is divided into three distinct parts, each with a unique function. First, the appetitive is the origin of varied and competing desires; the appetitive provides the raw material upon which the other parts of the soul will work. Second, the rational deliberates and organizes the appetitive desires into a coherent order, determining which desires should be fulfilled. Third, the spirited enforces and carries out the decisions of the rational.
The three branches of the American government work in a similar way. The legislative is the appetitive: it is the origin of many competing proposals. It provides the raw material upon which the other branches of government will work. The judicial is the rational: it deliberates upon the legislative proposals, determining which should be struck down, and which should be remain. Finally, the executive is the spirited: it enforces and carries out the desires approved by the judicial.
But in the nomination of judges to the judiciary, the roles of the three branches rotate. Now, the executive is the appetitive: it proposes nominees, and these constitute the raw material upon which the other branches of government will work. The legislative is the rational: it deliberates upon the nominations, determining which should be approved and denied. And the judicial is the spirited: it carries out the decisions of the legislative by swearing in approved nominees.
This analogy is particularly illuminating when considering the two recent nominations to the Supreme Court: John Roberts, now chief justice, and Harriet Miers, the current nominee. In Socrates’ tripartite soul, justice is served when each part of the soul fulfills its specific duties. Likewise, in the nomination of Roberts and Miers, justice consists in each branch of government fulfilling its specific role.
It becomes clear, therefore, that the confirmation process is more burdensome than the Senate’s usual duties. Ordinarily, the Senate is free to consider and pass legislation according to the collected impulses of its constituency — the American people. If a senator himself is against a certain bill, he can in good conscience sign it into law if that bill is the clear desire of his constituency. The burden of the law’s ultimate validity then falls to the deliberation of the judicial branch, which sorts through and rejects those laws that do not conform to constitutional order.
In the judicial confirmation process, the Senate is the final arbiter, the deliberative body that will make the final decision. As such, the Senate must rigorously explore the qualifications of a judicial nominee to determine whether that nominee conforms to constitutional order. But a key distinction should be recognized. While the Senate does take on the important role of the rational, it also abandons its normal role as the appetitive. It should no longer vote according to the varied and fickle desires of the people; instead, each senator should deliberate free from outside concerns.
Furthermore, because the president is now the source of the nomination that seeks to be confirmed, the Senate is no longer providing the raw material upon which the other branches will work. Therefore, the Senate should not apply a litmus test to the nominee’s expected decision, as would be expected if it had to vote according to the will of the citizens. Instead, the Senate is required to consider whether the nominee’s qualifications conform to the constitutional order.
A brief detour to the Constitution and its founders is now required. The Constitution gives the Senate the power to “consent” to judicial nominations, implicitly empowering the Senate to reject those nominations. This ability is meant for a specific purpose. Alexander Hamilton, in Federalist 76, wrote that because of the Senate’s power, the president “would be less liable to be misled by the sentiments of friendship and of affection.”
Thus, when considering John Roberts and Harriet Miers as potential Supreme Court justices, the duty of the Senate is to consider whether the nominees have strong qualifications for the position or have been nominated predominately because of their personal association to the president.
John Roberts’ nomination has already been considered; based upon his exemplary qualifications, he was confirmed. But justice requires that the Senate look into the qualifications of Harriet Miers. If she does not rise to the standard of the constitutional order, the deliberative should exercise its power over the appetitive, restraining a desire when it is out of line.
Peter Johnston is a freshman in Saybrook College.