Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 17 believed the Senate should have a degree of separation between the Senate and the people (No. 39). Second, a third of the Senate is re-elected every two years on a six-year term basis. Logistically, it would take a protracted amount of time to inaugurate significant change to the governmental structure, which the Founders believed would be necessary for preventing a dangerous level of revolutionary change. Third, the Senate was intended to be an equal body of two senators from each state. Such a plan was to counteract the population-based House of Representatives and would therefore further the distinctions between the two branches and their purposes (Article II). Fourth, the Senate was expected to check the president in a variety of functions, from treaty confirmation processes to legislation and on appointments. Even James Madison indicated that some level of public opinion would factor into the Supreme Court confirmation process, saying, “Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard” (No. 39). However, this degree of autonomy was intended to insulate the Senate from majoritarian moods, as well as preserve the independence and legitimacy of the judiciary. The Founders believed the Senate’s removal from the people via their election mode would not only give the Senate a certain level of autonomy from the electorate from directly influencing their advice and consent function, but also their removal from the people would afford the Senate the discretion and reflection it needed in reviewing and choosing to accept or reject the nominee. Coming on the heels of the populist movement in the early twentieth century, the Senate’s mode of election was changed in the Seventeenth Amendment, which called for the “Senate of the United States…[to be] elected by the people…” (Clause 1, Seventeenth Amendment, U.S. Constitution). Such a change affected the role of the Senate in a subtle, yet substantial way; the Senate was no longer afforded the level of insulation in their individual responses to a Supreme Court nomination. Each senator was now expected to explain to voters why they decided to vote to approve or reject the nominee placed forward by the president to the Supreme Court. Such a change has had direct impacts on senatorial and presidential elections. Specifically, public opinion can become the determinative factor in influencing how certain Senators choose to vote on a Supreme Court nomination, especially in their re-election year (Davis 87). The presidential and midterm elections from the 2010s are great examples of such partisanship, polarization, and political posturing that flows forward from direct Senate elections. The appointment of candidates like Neil Gorsuch and Brett Kavanaugh placed Red-State Democrats—or Democratic Senators from traditionally Republican states—like Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Claire McCaskill (D-MO) in a position to either support the president’s nominee and expect favorable reaction from their state voters in November or to follow the party line and oppose the nominee in the hopes that the consequences do not outweigh the benefits (Arkin). In his book Electing Justice, Richard Davis explores the divisive process as a result of more impact from interest groups and media agencies. For example, some interest groups provide lists of judicial candidates for presidential consideration (Davis 109); interest groups offer questions for Senators to use (Davis 111), and both media agencies’ interest groups also provide public support or condemnation to influence the outcome of a Supreme Court nomination (Davis 111). Interest groups spend millions of dollars to influence the outcome of senatorial elections in the hopes that future Supreme Court nominations will go in the direction the interest group prefers. Moreover, how media groups portray the nominee will impact how the American electorate perceives the nominee, even if the public is unaware of potential biases or misrepresentations. The media’s