Channels, Fall 2019

Page 24 Wilt • It Wasn’t Supposed to be Easy philosophy indicate that the Founders understood that some level of these considerations would inevitably fall within the guise of the advice and consent function. Heritage Foundation scholar McGinnis writes that the Senate has a right to check the president to prevent him from appointing individuals that “have unsound principles as well as blemished characters.” As stated before, the major evaluation criteria for early Founders in developing the framework for the appointment power rested in the nominee’s qualifications. The dual-appointment power ensured that the individual ultimately appointed to the Supreme Court would be of the highest qualifications and background with the strong capability to fulfill the role of Justice on the Court. However, the Founders began a trend of using political evaluative criteria for review. This is not new, and one should note that the Founders believed some political considerations were necessary for the review of the nominee. When considering the judicial appointment power, James Madison wrote a proposal that said the president would submit a nomination, and unless two-thirds vote by the Senate rejected the nomination on the grounds of “any flagrant partiality or error,” the nomination would proceed as approved (Kasper 555). Kasper draws an interesting point in his review of this portion of writing. Madison assumes that some level of partiality would be acceptable in the Supreme Court confirmation process or that some level of political consideration would be appropriate. Madison’s use of the words “flagrant partiality or error” indicates that the Founders anticipated judicial qualifications as the most suitable route for questioning and considering nominees to the Supreme Court with some amount of political consideration acceptable (emphasis added). This places the Senate in a difficult position, though, given the fact that in order to determine what some political consideration looks like, one would almost have to install a limit in terms of reviewing nominees, which may put the Senate at a disadvantage politically during the Supreme Court confirmation process. Discussion & Conclusion One can see the myriad of complexities concerning the Senate’s advice and consent function. Though the Founders did not explicitly state to what extent they believed certain qualifications would be used, they did implicitly provide context in how they anticipated the appointment power to be used. One can deduce certain points from their early writings such as letters amongst each other and the Federalist Papers, as well as from the developments of the Constitutional Convention and early practices of the appointment power in the formative years of the country following ratification of the Constitution. Overall, the Founders originally intended for an active Senate advice and consent function, one that would be powerful enough and effective enough to check the president from appointing an unfit individual to the Supreme Court. They anticipated a back and forth in prior advisement on nominees, as well as advisement on the judicial candidate officially nominated by the president. The Senate was then expected to review the eventual judicial nominee for the Supreme Court. However, based on the vague text of the Appointments Clause and combined with the understanding the Founders provided in the Federalist Papers, the Founders expected the Senate to decide how to best proceed in evaluating the candidates in the context of Article I, Section 5 powers to determine its own rules and procedures. They anticipated professional qualifications and judicial temperance