Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 1 “It Wasn’t Supposed to Be Easy” What the Founders Originally Intended for the Senate’s Advice and Consent Role in Supreme Court Confirmation Process Michael Wilt History and Government Introduction ince 2013, the President of the United States has nominated four Supreme Court contenders for the United States Senate to consider. In 2013, President Barack Obama (D-IL) introduced United States Solicitor General Elena Kagan as his choice to succeed retiring Associate Justice John Paul Stevens. Solicitor General Kagan had an impressive career that proceeded her ¬— U.S. Solicitor General during the Obama Administration and an Associate Counsel to President Clinton. At the end of the confirmation process, she received a 63-37 confirmation vote, surpassing the 60-vote threshold necessary for confirmation, and with bipartisan support from moderate Republican senators (Gura). Additionally, Elena Kagan received a favorable reception from most media outlets and a bipartisan response from Republican senators despite her more liberal leanings. Judge Merrick Garland was not so fortunate. Following the sudden passing of conservative icon and Supreme Court Associate Justice, Antonin Scalia, President Obama had the opportunity to ‘flip’ the conservative seat with a more liberal justice. However, following the 2014 midterm elections, the Republican Party easily claimed control of the Senate, flipping nine Democratic Senate seats in a Republican-wave election season (Elving). Although President Obama was working with a Republican Senate majority (Weaver, 1721), President Obama introduced U.S. District Court of Appeals Judge Merrick Garland as his nominee in March of 2016 (Elving). Senate Majority Leader Mitch McConnell (R-KY) announced that he would block all opportunities of President Obama in flipping the conservative seat on the Supreme Court and declared that the next President — regardless of party — should choose the next Supreme Court nominee (Elving). President Obama countered Majority Leader McConnell on two fronts: First, President Obama declared that the Senate should fulfill its constitutional obligation to confirm or reject the nominee under the guise of its advice and consent function (Elving); and, second, President Obama pointed out that Judge Merrick Garland received bipartisan approval for his current position in the federal judiciary, and he would appeal to both Republican and Democratic constituencies. S