The original intent of the founders was to balance the power of the executive branch in all aspects of governance. This includes the selection of the judicial appointments which were to include the advice and consent of the senate. Advice, as intended by the founders, would include input in the selection process. However, in practice the President does not seek advice in the selection process. In fact, often the members of the senate hear about the selection from the media at the same time as the general public.
Seeking the advice of the senate prior to the actual nomination could in fact make the process run much smoother. Recent examples of tumultuous nominations could serve as an example were consultation would be a preferable option to the presidents unilateral selection of the nominee. It is certain that in the post Garland debacle that any nomination by a Republican President would have faced fierce partisan resistance from the Democrat party. However, attempts to consult with the opposition party would have (or could have) mitigated some of the caustic atmosphere.
Another added benefit to seeking advice prior to the nomination would be that the President may have an opportunity to flush out in advance any objections that the opposition may have as well as ascertain the level of support within his or her own party. In the case of the nomination of Justice Kavanaugh perhaps some advance word may have been obtained related to the serious accusations made by various individuals related to possible misconduct by Kavanaugh in his youth.
Additionally, objections (by Senator Feinstein and others) to Justice Barrett’s fervent religious beliefs could have been addressed prior to her nomination. This would have avoided the awkward questioning which alienated many Catholics during her confirmation hearing. When the President withholds advance advice and merely presents his or her nominee to the senate for confirmation the process not only sidesteps the protections the founders put into place it also creates a partisan spectacle which highlights the deep divisions within our society.
In conclusion, when the President acts unilaterally he takes away the cooperative nature of the judicial nomination process that the founders intended. It was supposed to be a process where by the President brings his suggestions for the judiciary to the Senate and the Senate would then offer suggestions and guidance as to the candidates merit. Because this “prescreening” of candidates has not happened we have seen individuals put forward who have very contentious debates. This creates a bitter nomination process which does damage to both the institution of the Supreme Court as well as the nominee who is being debated. The candidates undergo a trial in the court of public opinion with serious accusations becoming a type of theater for the public to consume. When this happens those serious issues do not get the attention that they deserve because they are seen as political theater.
You make some great arguments as to the constitutional reasons that judicial nominations have leaned more in favor of the President. The advice clause is the most obviously neglected statement. As you bring up there is good cause as to why the Framers wanted the appointment of the judiciary to be a shared power. Thank you for posting.
Tim,
It was interesting to read your points, but there are a few of your claims that I would like to respectfully challenge/disagree with. To begin, you claim that the judicial selection nomination process would be much smoother if the President were to seek advice/approval from the Senate prior to making their appointments, but I would argue that this is not what would make it smooth. Only by selecting a nominee that belongs to the same party that is in control of the Senate would this be a smooth process. This is why we see so many instances of the Senate using filibusters and blue slipping in order to keep particular nominees out of these positions–because the Senate has become so ineffective due to extreme bipartisanship. Also, I would argue that perhaps the reason why many Senators learn about nominees around the same time the media/public does is because we live in a time where news can spread at the drop of a hat because of platforms such as social media. I do not think this is necessarily a bad thing; it adds transparency to our government, which is very important to have.
Riley,
The point you make surrounding the smoothness of the nomination process of federal judges is an interesting position. In my opinion, the selection process would actually be smoother if the president sought the proper advice from the senate. Much of the problem we see now comes from the hyper partisanship we see in all politics. If the president were to take the proper steps to utilize both sides of the senate for seeking advice, the senate would probably feel much better about the nomination and also make it seem like their individual thoughts matter, thus creating a smoother process that is not filled with partisanship.
Hi Tim!
I believe you are a tad off base in your analyzation of the Merrick Garland debacle. Garland was actually an extremely moderate pick which seemed to be rather appealing to many Conservatives, and was at least far more appealing than a progressive pick. The advice of the Senate is a process to come after the president, with their unprecedented resources, has made a pick as to who they believe is the best to fill the seat. There are many hearings and discussions which take place in order for the senators to understand the situation, and the vote for confirmation is itself the culmination of the advice process. As you no doubt already see, in the Garland and other less high profile cases, the Senate is in actuality forestalling the process by abdicating their right to give advice on a judicial nomination.