Those who hold positions in the judicial branch for the United States, are unlike those who hold power in any other branch. Federal and Supreme Court Judges are appointed for life. Due to this difference, the Framers gave power of judicial appointment to two branches. The President presents appointees to the Senate, with Senate advice, and Congress approves those appointments. At least that is how the Constitution lays out the process.However, this system has changed with expanding presidential powers. Currently, the President wields too much power in the selection and appointment of judges.
The first area where Presidents have begun excluding the legislative branch from the appointment of justices is in the ‘seek advice’ section of the Constitution. It has become a rarity for the President to consider the exception of Congress when creating a short list of candidates for Judgeships. A long time standard for federal positions was that home state Senators had veto power if they preferred one candidate over the Presidents pick. A President would respect the Senators choice. This form of separation has disintegrated and Presidents pick federal positions regardless of Senators preference or advice.
Parallel to the increase of Presidential power, is the increase of political polarization. Brett Kavanaugh’s confirmation is an example of this. Despite massive controversy, all but one Republican Senator voted to confirm. And Senator Murkowski voted ‘present’ not actually nay. This is due to the high cost of opposing the President’s pick in addition to the threat from your own party due to polarization. Polarization has enhanced the idea that a judge picked by a party will protect party ideals and agenda even after the election. Because of this shift, it is viewed as a party betrayal to oppose a candidate who was selected by the party President. This landscape has allowed Presidential power to expand even further. With the normalization of Presidents picking without advice and with coerced consent from their party in Senate; the President can hand select judges that follow the same policy agenda. This ensures a much longer shelf life on agenda that a single or even two term President.
Lillian,
I really enjoyed reading your post; it gave me a lot to think about. Although you make some great claims in your response, I want to rebut and inquire further about some of your claims. For starters, it is evident that your interpretation of the meaning of “advice” in the Constitution is that it should take place prior to the act of the appointment. If this is so, how would you suggest the President go about this? What exactly would they ask for advice on? Who to appoint? Their thoughts on their tentative appointments? This is an unreasonable amount of effort for the President considering the fact the Senate has the opportunity to provide their feedback after the appointment is submitted. If they blatantly disagree with the choice of the president, they will often blue slip or filibuster the nominee. This now common practice further attests to the rising prevalence of hyper bipartisanship (that claim of yours I certainly agree with) and also attests to how unproductive the Senate has become. Because of this, I would argue that the normalization lies in the stagnant nature of the Senate, not in the amount of power the president holds in choosing their nominees. Thanks for sharing!
I do agree that bipartisanship has become such that seeking advice of Senate would maybe be somewhat counterproductive at times. However, I do think that the reading brought up a very interesting example that demonstrates what I mean. It was common practice for Presidents to defer to home state Senators when it came to making a shortlist for federal judges in those states. This has become the exception instead of the rule, largely because the President is now in many ways sure of their ability to push through an appointment. We consider judicial appointments through the widely publicized and massive events that are Senatorial hearings for Supreme Court nominees. But there are hundreds of federal appointments that get quietly pushed through. Should those hundreds of seats really be decided by one person, or one branch of government?
You make a great argument! Thanks for posting!
Hello Lillian!
I agree with Riley in that the original intent of the Framers was for the confirmation of the president’s pick to BE that advice-giving stage which the Constitution lays out. If we take that to be the case (as things like the filibuster and the clue card veto were advents adopted later) than, if anything, the Legislature is the body of power that has overstepped its bounds in the judicial process. In completely abdicating their responsibility to confirm judges, they plunged the country into unparalleled chaos, as pointed out by Chief Justice John Robert’s plea to streamline the judge appointment process. The onus of power has lay with the president since the Constitution’s inception, and it is the Senate which is now making a bid to consolidate power from the president.
Thanks for Sharing!