Channels, Fall 2019

Page 26 Wilt • It Wasn’t Supposed to be Easy Fourth, the Founders originally intended the Senate to be elected by the state legislatures to avoid the direct, majoritarian pressures upon Senators for these momentous decisions. The Founders desired this degree of separation from the people in order to produce a more independent and legitimate Supreme Court. The direct election of senators has only increased the use of partisanship and political posturing amongst senators, as well as among the potential Supreme Court nominees as presidents seek to pick ideological candidates who may boost their standing amongst their constituents. Senators have felt the intense pressures from interest groups, media agencies, and the voters themselves as millions of dollars pour into Senate elections. Such constitutional shifts have produced dangerous consequences for the future of the judiciary, as well as the role of the Senate as senators may seek to satisfy their voters over their conscience for their vote on a Supreme Court nominee. The Founders originally envisioned for the Senate to assume an active role in advising and consenting on the Supreme Court nominees. Based on their early writings and manuscripts, their drive for philosophical and political principles, and their proceedings at the Constitutional Convention, the Founders intended for the Senate to assume a strong responsibility in reviewing the nominee by advising which nominee to appoint and by consenting—or rejecting—the nominee. The Founders anticipated for a level of inefficiency. Such a level of inefficiency is a good thing and would promote a stronger level of rigor in checking the president from appointing the wrong individual to the Supreme Court. The Founders anticipated at least some form of either accepting or rejecting the Supreme Court nominee, and this expectation was practiced in the early years of the American republic, such as John Rutledge’s nomination. Regardless, the Founders did not want for the Senate to be caught up in a political circus over Supreme Court nominees. If the Senate abdicated from its responsibilities in evaluating the nominee in a respectful and sober-minded manner, then the Supreme Court’s respectability would only diminish. The Senate’s reputation as a credible institution to check the president’s nominating power would be severely questioned, leading more ideologically oriented candidates to the Supreme Court versus level-headed and even-handed justices. The risks are too high for the Senate to not fulfill its proper advice and consent role in the context of the Founders’ original intentions and aspirations. Bibliography Arkin, James. “Kavanaugh hearing roils red-state senate races.” POLITICO, 28 September 2018. https://www.politico.com/story/2018/09/28/kavanaugh-red-state-democrats-817584. Bestor, Arthur. “‘Advice’ from the Very Beginning, ‘Consent’ When the End is Achieved.” The American Journal of International Law, Vol. 83, No. 4; The United States Constitution in its Third Century: Foreign Affairs, Oct. of 1989, pages 718-727. Bowden, John. “Timeline: Brett Kavanaugh’s nomination to the Supreme Court.” The Hill, 6 October 2018. https://thehill.com/homenews/senate/410217-timeline-brett-kavanaughs- nomination-to-the-supreme-court.