Going in favor of Yalof, the President upholds too much power over the decision making for the Supreme Court Judge. The Supreme Court nominations were something to uphold and deem what is truly constitutional, instead it has become a constant power grab from each Presidential Candidate that gets a chance to add a new judge. This judge is meant to uphold the constitutional validity of the laws that are passed and rulings given by the courts on a state, local, and even federal level.  The President is meant to pick this person who will remain in the position of power until their death or something withdraws them early, though this is rare. A single man who was elected by the majority though merely a simple majority oftentimes. Without representing all people or deciding with a group who present that representation, they are to pick a candidate that will endure for many years to come; deciding on what is constitutional by their view which is often reflective of the party that pushed them forward. 

The President represents someone who is the face of his party. They elect this person into power and we expect them to put someone into the Supreme Court that doesn’t seek to advance their own party’s agenda? Instead of picking someone based on merit and view point, they are instead selected based primarily on their own party. When Trump was President, he pushed forth a Conservative Supreme Court nomination over a Liberal one. You could argue that this has been due to the qualifications but there were surely more qualified individuals that were not able to advance simply because of the political party they identify with. The President is given a huge opportunity to input someone that will help advance their view of what the constitution is and that is a rather large thing given how the people view this position. The Supreme Court is the supreme law of the land, how they rule on something is how it shall remain for years to come. Presidents have been given the power to rule and decide what is right based on who they nominate and that is a bit too much power for one person to have.

It is clear, especially after our reading of Chapter 13, that the President holds far too much power during the appointing of all federal judges, including within the Supreme Court. I believe the largest reason for the imbalance of power that so drastically favors the President is due in large to the Senate itself. In the course of conducting debates in the Senate, one side or the other of the political aisle have taken turns growing in frsutration with the process to the extent of being willing to absolve themselves of power. In American politics, the filibuster is treasured. I have read that the concept of a filibuster, holding a discussion on a topic to the extent that the topic itself cannot be decided upon and not incidentally but as a decision or action in and of itself, is relatively unique to America. Embodied within the ability to filibuster is the concept that debate and discussion are welcomed in politics, even when they occur endlessly and without resolution. In some ways, the filibuster analogizes to the Greek phillosophers quite nicely, the legislative session being a human life and the discussion without resolution being a life of philisophical debate. In this way, both seem to actively achieve nothing but themselves represent a closeness to enlightenment and the value placed on dialogue.

When the Senate grew weary of their opponents making use of this virtuous political tool they willingly conceded this power. This removed, to a large degree, the Senate’s ability to provide oversight of judicial nominees and especially so from the minority party. This, interestingly, was precisely why they removed this power from themselves. The Senate, therefore, is rapidly losing power in the judicial nomination process but we see, at least in this specific instance, or both instances when considering the Supreme Court and lower court procedures as separate procedures, that they are intentionally losing power. They have removed their own voice in an attempt to remove their opponents voice. In both cases, they have willingly silenced their body in a short sighted effort to surmount today’s obstacles and weakened the one of the protections enjoyed by the Judicial branch against politicization and radicalization.

In the Supreme Court we have recently seen this issue play out through the Cavanaugh hearing. Although I had not paid careful attention at the time, it was relatively clear that one side of the Senate clearly held the view that this judge may have acted very poorly early in their life. Whether this should have prevented an individual from serving on the Supreme Court decades later I cannot say. I can say that it does not appear that the Senate arrived at a conclusion on that issue, rather it was decided by the majority of the Senate who happened to populate the same political party as the President who nominated the Justice and who appeared to have not been concerned over the allegations.

Due to my name, I am debating on the side of David A. Yalof for his pro argument. Within his argument, he brings up some very important points that I had not thought about. As a result, I can safely say that my opinion on the matter has changed, the president does have too much power when it comes to appointing federal judges. David Yalof gets to his perspective by analyzing the historical reasoning for the president’s role in regard to nominating federal judges and the role of the senate during this process. While the points he brings up are all worthwhile, I will focus more so on how the present political environment within America has allowed for the president to have too much power.

The biggest issue I have with the current political environment that creates too much power is tied directly to the Senate. The obvious problem that comes up is the ability the Senate has to suspend filibuster and as Yalof points out, this shifts more power to the president. The senate also is facing a problem when it comes to the amount of influence the president has over their political party. For the most part, the president is able to dictate the actions of his party just based on the hyper partisanship that allows for individuals in office to be easily swayed from their true opinions. Evidence for this can be easily viewed when looking at the amount of support the president’s party has had for nominees, as the overall support rate was over 99%. This fact, coupled with the demise of the filibuster, has directly contributed to an environment where the president has too much power and it’s evident that the executive does not utilize the senate for advisory purposes anymore.

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.

            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.

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.