Shane Stodghill 11/01/2013 Presidential Power in the Selection of Judges Constitutionally, the President is free to name anyone to the federal bench that he or she desires with the advice and consent of the Senate. However, since the end of 19th century the Senate has begun to defer this responsibility, which has strengthened the Presidency. This has altered the relationship between the President and the Senate, and in a sense, shifted the constitutional order that the founders had intended. Yet, two prominent political scientists David A. Yalof and John Maltese argue that the root of this issue stems from the Constitution’s judicial appointments clause and its meaning behind the word “advice.” Specifically, “did the framers want the President to seek advice from the Senate before making a judicial nomination, or did they intend to restrict the Senate’s advisory role to the post-nomination phase of the judicial selection process (Ellis and Nelson, 155)?” While both Yalof and Maltese present compelling arguments, they both fail to observe that this is phenomenon has caused a dangerously unbalanced growth of Presidential power, which runs counter to the constitution’s separation of powers doctrine. David A. Yalof is a prominent political scientist, who believes that the founders wanted the President to seek advice from the Senate before making a judicial nomination argues that Presidential arrogance in the modern appointment process has become normal, and as a result Presidents have too much power in the selection of judges. He explains that “up through President George W. Bush, chief executives tended to choose their high court nominees without giving most senators the privilege of even a cursory consultation before hand, and even leading senators from the President’s own party may discover the name of the President’s nominee only a short time before everyone else” (Ellis and Nelson, 156). At best the modern appointment
process entails empty consultation between senators and Presidential aides about a nomination that has already been made. Moreover, Yalof argues that the founders had intended for the Senate’s advisory role to be a sort of shared dialogue that would provide a substantial check on Presidential power, and that the modern dearth of conversation mirrors the growth of Presidential power as a whole during the twentieth century. Lastly, Yalof argues that “although Senator’s advisory function has been reduced substantially; the Senate can theoretically exert considerable leverage by withholding consent for the President’s judicial nominees” (Ellis and Nelson, 160). However, public confirmation hearings have become a sort of joke since the Robert Bork fiasco, and partisan polarization has nullified any chance of objection from the Presidents own party. Conversely, political scientist John Maltese argues that the founders wanted the President to nominate judicial candidates based on his or her preferences alone, and then seek the advice and consent of the Senate. He illustrates this point by referencing Alexander Hamilton’s arguments in Federalist No. 76 where Hamilton says that “one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even superior discernment, because a single well directed man cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body” (Ellis and Nelson, 164). Maltese seems to hold a strict legalist view on the advice and consent clause, and believes that the framers indented the Senate only withhold consent when there was a flagrant error in the Presidents nomination, such as obvious personal attachment or family connection. Moreover, Maltese argues that judicial nominees should not be held accountable in regards to a litmus test, because this would run counter to the ideal of judicial independence. More importantly, he argues that the modern confirmation process has become a political free-for-all where Senators completely distort the
legal qualifications of judicial nominees, in an effort to satisfy their own partisan political agenda. One can easily see that there is merit to both Yalof’s and Maltese’s arguments. However, there cannot be complete dichotomy when analyzing this institutional rupture. A healthy confirmation process would incorporate aspects from both arguments. In the nineteenth century the Senatorial practice in regards to the Presidential nomination of Supreme Court candidates was generally consistent with the founder’s constitutional perspective. Their reasons for endorsing Supreme Court nominee’s incorporated the entire political spectrum, and mirrored the same reasons the President might nominate a particular candidate. Moreover, these nominations led to a healthy standard of debate between the President and the legislature over the power of competing partisan objectives; the character of the constitutional order, and the overall composition of the court. This truly was a healthy confirmation process, which regularly exercised its separation of powers aspect. On the contrary, the contemporary Senate has become apolitical, and has generally adopted a policy of forbearance when it comes to judicial nominees. This constitutional impotence on behalf of the Senate has led to the changed character of the constitutional order, and has led to the transformation of the separation of powers doctrine. While I tend to side more with Yalof in this debate, he still fails to recognize that the power of this particular issue stems deeper than the Constitutions judicial appointment clause, and effects much more than either Maltese or Yalof take into consideration! Accordingly, as a result of the contemporary Senate’s forbearance they have left the judicial confirmation process shallow and twisted. For a healthy constitutional system, hypocrisy should be a political virtue in that it is a political order that forces politicians to go through the trouble of translating their ambitions and partisan interests into a language of constitutional argument. However
disingenuous their arguments maybe they tend to constrain the moves of interest of their opponents, which in turn motivates their opponents counter measure. But the modern confirmation process seldom works this way, because of partisan polarization. Senators who wish to oppose nominees on the basis of their constitutional views are now forced to oppose judicial nominees by utilizing low-minded categories such as professional competence, sexual scandals, drug use, and exedra. By and large, these low-minded tactics are not a suitable check to the Presidents power to nominate federal judges, and as a result this has led to the decay of the separation of powers doctrine.