Stealth candidates...that is what it appears they want.  Old man Bush chose one of those in David Souter.  It backfired.  Their thinking is the less of a record there is the less likely the left can mount a specific opposition based on the record.  By implying that they want to use a stealth candidate, I think precludes a nominee who is currently sitting on the federal bench where there is a "paper trail".  But there are still ways to figure out what judicial philosophy a nominee has even if there is no record.  A candidate just can't sit in front of the Senate Judiciary committee and continually say "I have no opinion".  But, reading your post, it is quite clear the GOP wants a candidate who will use his Miranda protections as much as possible and say nothing that might "incriminate" him/herself.

President Bush's line is going to be that the nominees opinions don't matter, just a promise to be fair. Are we buying this?

Competence matters. And judicial competence is determined by ones response to particular cases, real and hypothetical. One could not become a lawyer without answering questions on hypothetical cases. Surely we can't be expected to judge the qualifications of a Supreme Court justice candidate without their answering such questions.

Does Bush seriously think he can slip a stealth nominee past the American people? 

BushCo have gotten themselves in a hole now, since they really like the idea of judical candidates with no record to attack, but their 'promises' to the right (both CorpCons and TheoCons) HAVE TO BE DELIVERED this time (and for oncoming SCOTUS candidates) - witness the uproar of conservative groups warning against Atty Gen. Gonzales being appointed because he isn't sufficiently right-wing conservative.  The righties won't be postponed or molified by anything other than the genuine red-meat-eating, back-to-the-19th-century idealogue.

I can't wait to see how they did themselves out of this hole.  They can't risk complete rebellion from the right, but since there are some Sen. Repubs who might reject a PaleoCon nominee, somehow they have to deal with it.  Since the O'Connor replacement will impact court majorities more than a Rehnquist replacement would have, an out-and-out PaleoCon risks a filibuster that works with support from a few Repubs - this nominee IS important to both the Corporate and Religious wings of the Repub party.

Stealth wont work this time, not because the Dems dig harder, but the right doesn't want stealth, they want absolute assurance of a highly conservative justice.

What else is the Senate supposed to consider? Are we supposed to believe that the President isn't taking the legal thinking of potential nominess into account?

The President is supposed to take into account the character and legal thinking of the nominee. The Senate, in their role to "advise and consent" as indicated by Hamilton in Federalist #76 was to insure that the nomination was not make because of personal connection, cronyism, or popularity.

Seems pretty clear to me, the Senate is supposed to be deciding whether the nominee was chosen for personal reaons or not. If they go about vetting the nominee based on judicial/legal thinking they are stealing from the Executive the nomination process. It was judged by the founders that a comittee will be a less effective method of selecting candidates than an individual. Looking at the circus that arose during the previous contested nomination proceedings I'd say they were right.

Here's the kind of questioning they want:

Senator: So Judge Smith, when you were on the Xth circuit, did you show up for work on time?

Judge Smith: Yes, every day, sir.

Senator: And you did go to law school or at least pass the bar?

Judge Smith: Well of course, Senator.

Senator: Have you ever committed a felony?

Judge Smith: No sir.

Senator: And the President did nominate you didn't he?

Judge Smith: That's right.

Senator: Well you seem to be a fine, upstanding young gentleman. Thanks for your forthright answers. You'll get my vote, Judge.

Judge Smith: Thank you Senator.

Purple,

Hamilton discusses in detail the give and take that went on in the decision to give that power (like J. Adams before him in the Mass. Constitution) to the Executive. The essay in question can be found here, for it seems you didn't read it.

 Relevent parts include:

 It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else.

 and

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.

 and

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

 I don't think it's such an "unresolvable" question. And do you really believe the circus we have is better!

Purple State,

I agree with your reading of the relative weight to be given to the Federalist and other sources, such as Madison's notes, as well as with your general point that there was more to the objection against executive appointment than worries about corruption or favoritism per se.  These were certainly prominent elements in the arguments of those worried about ceding the appointment power to the executive, but they were part and parcel of a larger set of concerns.

I do not think Gorham was especially sympathetic to collective appointment, however.  He advocated (as you say) the Massachusetts model of appointment by the executive, with advice and consent by the upper branch, as preferable to appointment by the upper branch alone.  His only real concession was to admit that the latter method, which was the initial proposal, was at least superior to appointment by both branches.  James Wilson of Pennsylvania expressed a preference for executive appointment but was willing to settle for the Massachusetts model.  

Gorham and Wilson's main antagonists seem to have been Luther Martin of Maryland, Roger Sherman of Connecticut, Gunning Bedford of Delaware and Edmund Randolph of Virginia.  This group put forth a wide range of objections, including "wisdom of the multitude" type arguments, as well as narrower worries about corruptability and patronage.

You may have been thinking of Madison's early compromise proposal, which was that appointment should be by the executive with the concurrence of at least 1/3 of the upper branch.  This sounds like a weaker constraint on the executive than that in Gorham's proposal, but it is actually much stronger, since the power of making the appointments was clearly understood to be more powerful than that of giving "advice and consent."  This is evidence that the latter power is not meant to be coeval to that of appointment (or nomination), but subordinate.  But subordinate did not mean pro forma either.

Although Madison's proposal itself proved an unnecessary concession to the collective-appointment advocates, his expressed rationale behind the idea of a compromise perfectly captures what was at stake (in this issue and in others) between the advocates of executive power and the advocates of legislative power.  Madison said that a compromise: "would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive."

The point of responsibility is clearly that the executive, being one individual, can better be held accountable (by electors) for a bad choice than can a group, where responsibility is in many hands (this was of course truer before the executive term limit). The point of ensuring "security" against "incautious or corrupt nomination" is what we might call representativeness -- that the selection reflect a sufficient diversity of opinion and interest, such that the appointee can never simply be the creature of one powerful individual or faction. 

There is no reason to think that letting a Supreme Court Justice be the creature of one ideological or class faction is any less inherently "incautious" than letting him or her be the creature of one sectional or patronage faction, or that the Senate would be overstepping its role of advice and consent in preventing such an outcome by witholding its consent.

Oh, and one more thing. The main point is that the Washington Post quote which Mr Yglesias used to start this whole riff off wasn't such an off the cuff idea. For Mr Hamilton very well might have agreed that the Senatorial advise/consent didn't include vetting (in gory detail no less) the nominee's particular flavr of jurisprudence and prior opinion.

 And in fact, it might even be a good idea and not a far out right wing wacky fantasy.

Mark . . . no time right now to address all your points, but I think the following selections from Madison's notes gets to the difficulty of judging the founders' intent . . . just like our leaders of today, they were of various minds. 

Notes for June 5

The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resoln. Th [FN2] The Clause-"that the National Judiciary be chose by the National Legislature," being under consideration.
Mr. WILSON opposed the appointmt. of Judges by the National Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the executive was that officers might be appointed by a single, responsible person.
Mr. RUTLIDGE was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.
Docr. FRANKLIN observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practiced in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.
Mr. MADISON disliked the election of the Judges by the Legislature or any numerous body. Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand he was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in-as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the appointment by the Legislature might be struck out, & a blank left to be hereafter filled on maturer reflection.
Mr. WILSON seconds it.
On the question for striking out. Massts. ay. Cont. no. N.Y. ay. N.J. ay. Pena.ay. Del. Ay. Md. ay. N.C. ay. S.C.no. Geo.ay. [FN3]
Mr. WILSON gave notice that he should at a future day move for a reconsideration of the clause which respects "inferior tribunals."
Mr. PINKNEY gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."

Notes for July 18


Resol. 11 [FN6] "that a Natl. Judiciary [FN7] be estabd. to consist of one supreme tribunal." agd. to nem. con. [FN8]"The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature."
Mr. GHORUM, Wd.. prefer an appointment by the 2d. branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.
Mr. WILSON, still wd.. [FN9] prefer an appointmt. by the Executive; but if that could not be attained, wd.. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." Mr. Govr. MORRIS 2ded. the motion.
Mr. L. MARTIN was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd.. be best informed of characters & most capable of making a fit choice.
Mr. SHERMAN concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.
Mr. MASON. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides agst. referring the appointment to the Executive. He mentioned as one, that as the Seat of Govt. must be in some one State, and [FN10] the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.
Mr. GHORUM. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Govt. where they reside, as the Executive. If they can not get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character, produced by a participation of numbers, in dishonorable measures, and of the length to which a public body may carry wickedness & cabal.
Mr. Govr. MORRIS supposed it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they wd.. be much about the Seat of Govt. they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House.
Mr. MADISON, suggested that the Judges might be appointed by the Executive with the concurrence of 1/3 at least, of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
Mr. SHERMAN, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
Mr. RANDOLPH. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd.. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened.
Mr. BEDFORD thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.
Mr. GHORUM remarked that the Senate could have no better information than the Executive. They must like him, trust to information from the members belonging to the particular State where the Candidates resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the 2d. branch
Mas. ay. Cont. no. Pa. ay. Del. no. Md. no. Va. no. N. C. no. S. C. no.-Geo. absent. [FN11]
Mr. GHORUM moved "that the Judges be nominated and appointed by the Executive by & with the advice & consent of the 2d. branch & every such nomination shall be made at least days prior to such appointment." This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.
Mr. Govr. MORRIS 2ded. & supported the motion.
Mr. SHERMAN thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.
[FN12] Question on Mr. Ghorum's motion
Mas. ay. Cont. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. absent. [FN13]
Mr. MADISON moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch Mr. Govr. MORRIS 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.

Draft of the Constitution on August 6

Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.

Notes for Sept 7

Col: MASON [FN24] said that in rejecting a Council to the President we were about to try an experiment on which the most despotic Governments had never ventured. The Grand Signor himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following
"That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State, for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate."
Doctor FRANKLIN 2ded. the motion. We seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience shewed that caprice, the intrigues of favorites & mistresses, &c [FN25] were nevertheless the means most prevalent in monarchies. Among instances of abuse in such modes of appointment, he mentioned the many bad Governors appointed in G. B. for the Colonies. He thought a Council would not only be a check on a bad President but be a relief to a good one.
Mr. Govr. MORRIS. The question of a Council was considered in the Committee, where it was judged that the Presidt. by persuading his Council, to concur in his wrong measures, would acquire their protection for them.
Mr. WILSON approved of a Council in preference to making the Senate a party to appointmts.
Mr. DICKENSON was for a Council. It wd. be a singular thing if the measures of the Executive were not to undergo some previous discussion before the President.
Mr. MADISON was in favor of the instruction to the Committee proposed by Col: Mason.
The motion of Mr. [FN26] Mason was negatived. Maryd. ay. S.C. ay. Geo. ay- N. H. no. Mas. no. Ct. no. N. J. no Pa. no. Del. no. Va. no. N C no. [FN27]

Draft of the Constitution on September 12

He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for.

Purple,

I'm not sure exactly how much to read into the founders intent from their discussion. Scalia in "Matter of Interpretation" is quite dismissive of using comittee discussions in lieu of the actual text in question ... which I guess leads us back to deciding/discussing what nomination means and how that differs from "advise and consent".

Also, it doesn't help your point that at one point in the disucussion Mr Madison proposed requiring 1/3 of the "2nd branch".

And again, I thank you for pointing this resource out. Instead of pdf/html I've opted for Amazon. My guess is this affair will not be settled before my "super-saver/free shipping/slow boat" text version will arrive while the debate still rages. sigh. 

"Scalia in "Matter of Interpretation" is quite dismissive of using comittee discussions in lieu of the actual text in question ... which I guess leads us back to deciding/discussing what nomination means and how that differs from 'advise and consent'."

Scalia claims to be more of a strict constructionist (or textualist) than an original intentionist.  I tend to be a textualist too. Textualists believe you focus primarily on the words as written and don't try to read much more into them. Intentionists try to interpret the words based on what they think the founders believed. While I believe it is important to read what the founders wrote, I also think that it's actually quite hard to divine their intent. The sample from Madison's notes shows exactly why: the founders were of multiple minds and the text they adopted was a compromise that probably meant different things to the different founders (we know the founders began arguing amongst themselves about the meaning of the text almost as soon as it was ratified). Also, who are the founders? Just the people at the convention? The people in the state legislatures who ratified the constitution? All political leaders from the time who expressed an opinon? All pundits who expressed an opinion? Only those who supported the constitution fully? Or do you include those that had objections to it? The more people you include in your list of founders, the harder it is to define a consensus. The more you limit the list, though, the more arbitrary your conclusion about any consensus seems.

This is why, again, I don't give much credence to arguments about what the words mean beyond what they actually say: the executive nominates, the senate advises and consents. Trying to dig any deeper into the meaning of this phrase is, in my opinion, futile. If the words aren't clear enough (and they aren't), then the only good solution is to re-write them and amend the Constitution to clarify what's meant. 

Anyway, enjoy the notes when they come--they can be a bit tedious to get through, but there's great stuff in them if you have the energy.

Since I've advocated for amending the advice and consent clause, perhaps I should offer a suggestion about how the nomination process might be approved.

I tend to like Ben Franklin's idea--that having a small group responsible for the appointment is best. What I would do might be something like this:

1. Create a council of nomination that consists of 5 people, 4 senators and the President. 

2. Have the Senate elect at the beginning of each term, 4 of its members to participate on the council. The election would have to be held in a manner that ensures bipartisan representation on the council. Maybe a single vote would be held, with the top four vote getters being elected.

3. When an executive or judicial vacancy occurs, the council meets to decide on candidates for the office. The council must unanimously agree to a list of three candidates. Once they agree, the three candidates are submitted to the senate for consideration. 

4. The senate interviews all three candidates in a timely fashion.

5. After the interviews are finished, the full Senate votes on the candidates. To be appointed on the first ballot, a candidate needs to receive at least 60% of the Senate's votes. In the event that no candidate receives 60% on the first ballot, the top two vote getters have a run off.* If in the run off, neither of the remaining candidates gets 60%, the Senate will re-open debate on the two leading candidates, then vote a second time on these same two candidates. If in this second vote, neither of the candidates receives 60% of the votes, then the council must submit a new list of three candidates to the senate (the new list cannot include the candidates submitted the first time), and the process starts again.


* A method for breaking two-way or three-way ties on this first vote will need to be developed. Maybe the Senate votes on which of the tied candidates to eliminate (simple majority vote) or the council breaks the tie by majority vote.

Could Glaivester please define what "far left" means in his universe or how exactly he thinks Judge Ginsberg meets that criteria?

And here's the type of questioning the Democrats want:

Kennedy: Do you promise to vote the way that NARAL wants you to vote on any topic that might have anything at all to do with abortion?

Nominee:  Well, Senator, I can't say that I'd vote that way in every case.

Kennedy:  Obviously you are a right-wing extremist, and must be filibustered.

Reid:  I agree with Senator Kennedy, the Democrats in the Senate will filibuster you.

42 Other Democrats:  Baaaah!  Baaaah!  We will filibuster!

"The current Court is (and has long been) quite friendly to corporate interests already. See: the recent Kelo decision. Anyone Bush nominates who isn't to the left of the most liberal justice currently on the Court will go down well with corporate America."

I don't mean to be rude, but doesn't that fact that the liberal judges on the court were most of the Kelo majority bother your hypothesis even just a little bit?