In recent memory, political polarization has become more apparent, and thus more important to notice in all facets of politics. Most importantly hyper-partisanship has created a political atmosphere where slight advantages allow for huge rewards in the judicial branch. Recent changes in process and pushback have made the advantage more apparent and show the president has most of the power in this regard.
Appointing and confirming a judicial candidate was originally designed to be a joint task between the Senate and the president. The president nominates a candidate and the senate either confirms or denies them. They also added that the senate should act as advisor in nominations. However, recently this advice function has been overlooked. The president often uses their own people outside the senate to search and vet potential nominees without giving the senate a chance to interject. This makes the senate disconnected and disinterested in the nomination process potentially limiting alliance. Currently, if this advice function is used it is mostly symbolic as a decision was already made. The framers knew that entrusting either side the full rights would ruin the checks and balances in place.
For a long time even, there were checks added to enable the senate to remain relevant in this process. However, the removal of the blue-slip system and the filibuster has had the effects of speeding up confirmation processes and endowing the president with more power. The strength of the senate continued to slowly die from outside and inside forces. When the Senate is controlled by one party, they make decisions that will further their party in the short term even if it is not ideal for the senate long term.
When a president makes the nomination the senate technically still can deny confirmation, but this hardly ever happens. Hyper-partisanship has made senators in effect unable to vote against their party. Those that do ultimately end up losing reelections and support. Thus, if a president even has a slight advantage in the Senate, it is almost a guarantee that the nomination will be confirmed. Even nominees with alleged devious backgrounds can be confirmed due to this fear.
This power has evolved from a bilateral power to a unilateral power, even at the risk of damage to the US. Presidents have become more powerful, and they will maintain that power even if using the senate as an aid could be beneficial to the whole country. Conceding any power comes with the risk of losing reelection and party support which is vital in this era.
You highlight a really important part of the context as to why judicial appointments have changed so much. Hyper partisanship has created an environment where it is almost taboo to vote against ones own party in a confirmation hearing. The obvious cost of opposing the Presidential selection has hogtied Congress. One question I had when thinking about this debate and reading the text was if the increased power that Congress holds has changed anything in how the President selects candidates. The reading pointed out that the Framers thought it would be highly irregular for candidates to not be confirmed, however the controversy we have seen occur more and more often, makes me wonder if Presidents are less inclined to consider the advice of Congress and be less selective when choosing candidates? or choose maybe more controversial candidates like Brett Kavanaugh? Thank you for posting.
Wyatt,
You made a lot of great points in your response, although I would like to discuss and challenge a few of them. First, I completely agree with you that a rise in hyper partisanship has played a significant role in the process of confirming judicial nominees, but I also want to argue that this bipartisanship does not always give the president a huge advantage, but can if the Senate is controlled by the same party that the president belongs to. Take Brett Kavanaugh for example–he was nominated by Republican President Trump and confirmed by the Republican controlled Senate regardless of the plethora of sexual allegations against him. If not, then the Senate can keep the president’s nominee from being confirmed. Because of this, I would like to argue that the Senate is perhaps more powerful than the President in this regard. Also, in every one of the posts I have seen thus far arguing for the pro side is the argument that the president has too much power in this process because he doesn’t actively seek advice/consent from the Senate prior to making appointments, but I’d argue that the process of deliberation and voting in the Senate is where the advice and consent is given. Can you think of a way in which the Senate would give advice and consent to the president regarding judicial nominees that would not take a significant amount of time? Thanks for your comments.
Hey Wyatt!
Your observation that the president has sped up in their appointments recently is accurate; however, it is actually because the presidential nominating process had slowed to a all-time low due to legislative efforts to hamper the judicial appointment process. This speedier pace exhibited by both Trump and Biden is in fact a return-to-form, returning the power of appointment back to the Executive branch where it chiefly resides and returning the Senate back to its secondary role in the process. Though the amount of judges being appointed is rather high, this is due to the immense and frightening amount of vacancies left over from the Obama era which were forestalled by Congress in direct violation of their oath to advise the president on judicial appointments.
Thanks for Sharing! 🙂
Seneca,
I do not believe the appointment of federal judges should be a speedy process. Sacrificing a proper nomination process for the sake of time will only be harmful to the quality of judge that ends up getting appointed. With federal judges being a position that requires the highest qualified individuals with the highest moral character. Again, streamlining that process allows for individuals to hold that position who should not. In a perfect world, the nomination process should see stricter deep dives into the nominees qualities and needs to come from an unbiased standpoint. Of course, having a stricter nomination process will make it less smooth, but that is a tradeoff I would be willing to have.