Channels, Fall 2019

Page 4 Wilt • It Wasn’t Supposed to be Easy (see Max Farrand’s anthology; Gauch, 351, 361; Hunt). Despite the breadth of discourse over the appointment power, Adam White, a Harvard Law graduate, notes that “[the] meaning of advice and consent is not self-evident, and the means of its proper application are not obvious” (108). Some scholars argue that while consent may be an easier concept to comprehend, advice is not completely understood (Sklamberg, 447-8). Advice usually indicates that the “recipient is not obliged to receive it” (Sklamberg, 447-8; McMillion, 5-6). The advice and consent role is a nebulous undertaking and requires a broad context in order to fully grasp the implications involved in reviewing the Founders’ original intent for the Senate’s role (Gauch, 339). Most of the existing literature focuses in on the current confirmation process and the partisanship that has plagued the evaluation of Supreme Court nominees by the U.S. Senate. However, the literature that details the Founder’s original view of the Senate’s role in the Supreme Court confirmation process centers on the Constitutional Convention and the development of the proceedings (Farrand; White, 111-113; Harris, 21-25; Ross; Gauch). However, there is room to explore an originalist approach to the confirmation process as understood by the Founders. As mentioned above, there was a constant back-and-forth debate over which branch to install the appointment power. Adam White wrote in review of the Convention that “[one] group of delegates, led by James Wilson, Nathaniel Gorham, Alexander Hamilton, and Gouverneur 9 Morris, favored control of appointments by a strong executive” while the “opposing camp, led by Charles Pinckney, Luther Martin, George Mason, Roger Sherman, Oliver Ellsworth, and John Rutledge, favored legislative control of the appointments process” (110-1). There are also a number of different writings by Thomas Jefferson, James Madison, and other Founders that display the ambiguity and complexity over the development of the Appointments Clause (Gauch, 351, 361; Hunt). There are even competing views on how Alexander Hamilton interpreted the Appointments Clause. Bruce Fein, a Washington Times author, suggests that Hamilton would have opposed the use of ideology or partisanship from plaguing the judicial confirmation process, thereby affirming a more passive Senate role (672). Likewise, New York Bar member William Ross writes that Hamilton saw the Appointments Clause as mostly resting in the President’s authority, and not in the Senate. Therefore, the Senate should acquiesce to the President’s nominee unless disqualifying factors become apparent. In contrast, Eric Kasper believes that because Hamilton viewed the Appointments Clause of Article II in the U.S. Constitution as a shared power between the executive and the Senate, the Senate should be allowed to evaluate nominees’ ideologies. Continuing, Kasper asserts that Hamilton would advocate for an energetic Senate that would hold a more active role of the Senate (567). However, the issue with these analyses centers on the lack of evaluating their original intent in formulating the advice and consent clause of the Appointments Clause. By not fleshing that out in the text itself, the Framers then left the Senate’s function open for interpretation to the Senate as to what their function should be. A simple reading of the text will showcase the clause’s elusiveness: “…[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court…” (Article II, Section 2, Appointments Clause, U.S. Constitution) As a result, various analyses that combine elements of either a more passive Senate role or a more active and energetic Senate function have led to different interpretations of the literature.