Channels, Fall 2019

Page 18 Wilt • It Wasn’t Supposed to be Easy portrayal of Supreme Court nominees significantly impacts the way voters perceive the nominee as well, thereby impacting senatorial considerations (Davis 87). Therefore, if both the media and interest groups are actively influencing the Supreme Court nomination processes, then Senate elections will be significantly impacted by their presence. Though the Founders anticipated some level of public influence in the Supreme Court confirmation process, it was more or less anticipated in the general desire of a qualified nominee who was above reproach that the public would find acceptable. The Founders did not anticipate the people to essentially ‘elect’ the Supreme Court justices by virtue of direct Senate elections. The Founders saw the importance of establishing and preserving an independent judiciary. Such a position was blatantly argued for in Federalist No. 78, which states, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution” (No. 78). Furthermore, some Anti- Federalists suggested the judiciary would check Congress and the people by voiding a popular piece of legislation passed by Congress. Hamilton corrects these critiques of the Constitution by asserting the following in Federalist No. 78: Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Hamilton believes that the judiciary is to uphold the Constitution above all else, including the expressed will of the people. Therefore, the judiciary is called to a high standard of independence and removal from the people. Even more so, Hamilton questions the appointments and who should make them. Hamilton asserts that a single branch would not afford the proper character for the Supreme Court (No. 78). He writes of public opinion’s effect on Supreme Court nominations in Federalist No. 78: If [the power of making appointments was given] to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. How much more than should the Senate, which either confirms or rejects Supreme Court nominees and was originally elected by the state legislatures, be detached from momentary passions of the people? The Founders certainly considered this to be an issue of the utmost importance; therefore, their original understanding of Senate’s election via the state legislatures and not by the people was for the protection of not only the judiciary in preserving its independence, but also for the Senate in preserving its prestige and importance in appointing judicial nominees to the nation’s highest bench in the land. The Federalist Papers (Continued) In Federalist No. 66, Hamilton offers the reader a number of important assumptions on the extent of the Senate’s powers within its advice and consent role. First, Hamilton assumes an energetic and active Senate. For example, Hamilton writes in objection to detractors who feared an aristocracy that the Senate “is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices” (No. 66). Moreover, Hamilton praises this dual-appointing method as