By Mike Dorf
In my latest FindLaw column, I discuss Lindsey Graham's speech last week explaining why, despite disagreeing with Elena Kagan on issues and philosophy, he would vote to confirm her. In a nutshell, Graham says that the proper role of the Senate in judicial confirmations is to check the nominee's professional qualifications and character, but not his or her substantive views. I argue that Graham's approach is certainly a legitimate one with a respectable tradition, but not, as he says, the only approach permitted by the Constitution. In the course of examining Graham's argument, I explain that one reason his invocation of Alexander Hamilton's views from Federalist No. 76 appears misplaced is that Hamilton was talking in the relevant portion of that essay about the role of the Senate in confirming executive officials, not judges or Justices. It's appropriate, I say, for the Senate to apply more substantive standards when considering nominations to a life-tenured judiciary charged, among other things, with checking the President, than when considering nominations to serve in the President's administration to carry out the President's policies.
Here I want to raise and then respond to a potential objection (not discussed in my column) to the foregoing line of reasoning: The Constitution confers the "advice and consent" power for judicial and executive officials in the same sentence; it is literally the same power; thus, according to this objection, "consent" cannot mean one thing with respect to judicial officials and another thing with respect to executive officials. Justice Scalia has espoused that view with respect to statutes: A single word or phrase in a single statute must have the same meaning across contexts. And, the objection would conclude, it applies to the Constitution as well.
However, as Jon Siegel showed in a nifty 2005 Texas Law Review article (pre-publication version here), "polymorphism"--the practice of giving a single word or phrase in a single statute different meanings in different contexts--is both well established and normatively appropriate (in certain circumstances). Aaron Leiderman wrote a nice piece in the Administrative Law Review (pre-publication version here) extending and applying these principles to the agency context. What about "constitutional polymorphism?" Can a single word or phrase in a single clause of the Constitution (such as "consent") mean different things in different contexts? It strikes me that the answer is almost surely "yes," but that if it's "no," it's only "no" in a strictly formal sense.
Consider the Supreme Court's procedural due process jurisprudence, which, under the leading case, balances the government interest in expeditious resolution of disputes against the private interest in avoiding an erroneous deprivation of an interest in life, liberty, or property, to determine what process is "due" in any given case. In a formal sense, we could say that the meaning doesn't change. Everyone is entitled to exactly the process that is "due" him or her under the circumstances; it's just that different circumstances demand different processes. Or consider the different tiers of scrutiny under the single Equal Protection Clause. Here too, we could say that the term "equal protection" always means the same thing but that this one thing has different entailments in different circumstances. But this move--like the parallel move to avoid polymorphism under the Due Process Clause--strikes me as highly formalistic. That is why both Justices Marshall and Stevens--who, in this context, were critical of constitutional polymorphism--sometimes complained that the Court's equal protection jurisprudence ignored the fact that "there is one Equal Protection Clause." Similar points have been made by conservative Justices objecting to decisions scrutinizing affirmative action programs less rigorously than other race-based classifications. These criticisms may be right or wrong on the merits but I think they correctly understand that the formal move of saying everyone gets the same definition of equality at some "ultimate" level, ignores the substantive polymorphism.
So, to return to the hypothetical objection to my objection to Graham's use of Federalist No. 76: Yes, the conditions under which the Senate can or should withhold consent from a Presidential nominee can differ based on the nature of the office. And that's perfectly consistent with the way in which the Constitution is generally interpreted.