Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 25 to be reviewed as major components in evaluating the candidate. The Founders also believed some level of political consideration would be used in the appointment of Justices. They built the Senate election method as a way of checking the popularity of a candidate or president from influencing how Senators viewed political qualifications in the Supreme Court confirmation process. Following this research process, one should consider certain themes. First, the Founders exerted energy and effort in deciding how the appointment power would be distributed. They understood the risks involved in wrongly assigning this particular power and how just one branch could accumulate too much power in its own hands at the expenses of the other two branches. Second, the Founders also drew from specific principles of governmental power, which informed their understanding of how to best establish a government that would fulfill the intent of pursuing good governance and justice for the people of the United States of America. These driving principles included the following: human nature and man’s selfish motives hindered an individual’s ability to not desire more power; separation of powers became a consistent theme as the Founders understood the necessity in apportioning certain powers amongst three separate, distinct, and independent branches of the federal government; and, checks and balances informed the practice of government, and delineated the extent of the branches’ powers and how they balanced against each other. Such principles are seen blatantly in the designing of the advice and consent function throughout the Constitutional Convention, Federalist Papers and other writings, as well as early practices of the government. Third, as described under the notion of checks and balances, the appointment power as designed by the Founders was intended to be a shared power and responsibility between the executive and legislative branch. The Founders expected formal and informal negotiation between the Senate and the president on appointing the most suitable individuals to the U.S. Supreme Court. Therefore, the Founders intended for the Senate to ‘check’ the president for presidential favoritism, state preference, familial linkage, or against general popularity. The Founders envisioned the Senate reviewing the individual’s qualifications, judicial temperance, and general fitness to discharge the duties of a Justice on the Supreme Court. Senators were also afforded some level of discretion in reviewing the nominee’s political and judicial philosophy. By no means did the Founders hope or anticipate these considerations—political and judicial philosophy—would be the determining factor for denial of the judicial nominee. While the Founders may have foreseen such a scenario given the ambiguous language in the Appointments Clause, they did not believe such “flagrant partiality” would amount to reason enough to reject the nominee altogether on political considerations alone. This discretionary power in reviewing the president’s judicial nominee is found within the vague language of the Appointments Clause. The lack of a direct call to action from the Senate affords it certain flexibility in determining how it intends to review the nominee. The Senate’s ability to determine the rules and procedures of its own chamber as according to Article I, Section 5 garners a stronger sense of duty and responsibility to check the president. Such a power should embolden the Senate to soberly understand the immense role it has been given and recognize its responsibility to assume an active role in properly checking the president, not in the sense of rejecting the nominee as the only means to check the president but to view the role of evaluating the nominee as balancing and checking the president.