Riley von Borstel

This topic is certainly something I have pondered about before reading the arguments of both the pro and con sides of this debate, and even after reading both arguments, I still have to agree with the justification of the con side. In other words, no, I do not think that the President has too much power in the selection of judges. On the contrary, I think Congress perhaps has too much power in their role of the selection of judges, and they use the judicial branch as yet another weapon in the ever-increasing bipartisanship of American politics.

For those that consider themselves to be literalists regarding the Constitution, it is important to consider the fact that it is not explicitly mentioned that the president must consult members of Congress prior to making their judicial nominations–but they are certainly welcome to if they desire. What it seems is that the “advice” from Congress that is mentioned in the Constitution comes from the deliberation that takes place in the legislative branch post-nomination from the president. The role that the president has in this process–selecting the nominees–makes legitimate sense, as if it were up to the members of the legislative branch, then the process would take exponentially longer due to the many different opinions involved in the process. As Nathaniel Gorham argued during the Constitutional Convention, “the Senate was still ‘too numerous, and too little personally responsible, to ensure a good choice.'” Furthermore, James Madison added that the executive would be more likely than the Senate to select individuals fit for the position and that by requiring the “consent and advice” of the Senate there would be the ever-important checks and balances.

When the founders were discussing the issue at hand during the Constitutional Convention, they figured that the Senate voting against the judicial nominations of the president would be a rare occurrence and that it would only occur in times where the Senate felt that the president had a personal or familial connection to the nominee. Of course, this was far before the current hyper partisan climate that we are experiencing today, in which it is extremely common for members of the Senate to reject a nominee merely based on their ideological stance. This is why I feel that perhaps the Senate holds too much power in the role of selecting judicial members. Because the Senate holds this power, they can control who is placed on these courts and will inevitably choose nominees that belong to the same political party, and, therefore, have a similar agenda. They can also use a variety of means to block candidates they are not in favor of without blatantly shooting them down, such as filibusters and through the blue-slip procedure. In my opinion, this is maltreatment of the power that the Senate has been granted in the selection of judicial officials. It does not matter how qualified one may be for the position they have been nominated for, most Senators will not vote to confirm them merely on the basis that they belong to a political party. As time went on and the polarization of political parties grew, the frequency of filibusters and blue-slipping continued to increase, until it got to the point where the amount of time it took to confirm a judicial nominee grew to be excruciatingly long–the median time is currently 225 days. This is yet another example of hyper bipartisanship making it so our federal government is largely unproductive. To wrap up my argument, I wanted to relay a quote from Maltese that I feel adequately sums up why the president does not have too much power in judicial nominations:

“In contrast, President Trump’s judicial nominees were confirmed relatively quickly and easily. Media accounts heralded the ‘historic pace’ set in 2018… That pace did not reflect a president with too much power: it reflected a Senate that was doing its job.” After the president makes his nomination, the ball is then in the court of Senators to do their job and fill these seats.