As Maltese presciently puts it, “Anyone who witnessed the process used to fill the Supreme Court vacancy left by the death of Antonin Scalia […] would be hard pressed to argue that the president has too much power” in the process of judge selection. As laid out in Hamilton’s Federalist No. 76, the original conception of the Constitution gave the president the majority of the power to stock the judiciary due to the singular nature of the Executive lending it to be better directed in the decision process. Even then, though, Congress was allowed a voice in the process to check the large say that the president was, purposefully, given. In recent years, however, the Legislature, not the Executive Branch, has subsumed an inordinate amount of power over the process, creating unprecedented chaos across the judicial nominating process.

Since the turn of the 21st Century (though the ball got rolling even earlier in the 80s) gridlock and partisanship has increasingly interfered in the process of judicial nomination, creating numerous constitutional crises as a result of the Legislature’s increasingly-manipulative hand in proceedings. Though the Constitution gave the Legislature power to confirm the president’s picks, the Senate has increasingly abused this power to block judicial picks from even being discussed. This is not a proper use of their powers; indeed, it is the ultimate abdication of their ability, as it utterly destroys the president’s ability to make judgments. This can be seen in Chief Justice Roberts plea in 2010 for the process to be repaired, as the Senate’s meddling had plunged the judiciary into unprecedented chaos with vacancies proliferating across the country. With the legislature’s removal of the filibuster in cases of judicial decision in particular, the right to make appointments has been returned to the president and both Trump and Biden have been able to return to a normal rate of nomination. That being said, the frankly shameful acts of the legislature, particularly in the debacle around Merrick Garland’s non-nomination, have irrevocably harmed the institution of judicial appointment by creating a dangerous precedent that the Senate may simply ignore their responsibility under the Constitution to fill the bench. The Legislature, rather than the Executive, is far too powerful in the realm of Judicial appointments.