Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 5 Multiple scholars assert that the Senate should take a more active and energetic role under the guise of the Senate’s advice and consent function (Sklamberg, 461; Ross, 639; Gauch, 340-1; Kasper, 550). Howard Sklamberg, a Harvard Law School graduate, suggests that the Senate is a powerful body when placed in the proper context, and that the Senate should assume a more active role in its advice and consent duty (461). William Ross and James Gauch, respectively, would both agree with this assertion and point to the development of the Appointments Clause as evidence that the Framers intended for a more active Senate (Ross, 639; Gauch, 340-1). Those in support of a more active Senate as part of the Founders’ original understanding tend to point to early state actions. Sklamberg —writing of the Senate’s advice and consent role as it pertains to treaty-making — discussed the governor’s broad power as it related to the legislative branch of state governments, which was usually the Privy Council (461). Overall, Sklamberg stresses the importance of context surrounding the meaning of advice and consent. Sklamberg finds that American state governments at the time of ratification of the U.S. Constitution perceived a shared power between the executive and legislative arms of government, indicating implicitly that an active Senate is required (461). Contrasting the more active Senate model, multiple scholars claim that the Framers intended for the Senate’s role in the Supreme Court confirmation process to be passive and deferential to the president’s choice in general (Olson, 9-23; Ross, 681). Separation of powers scholar for the Library of Congress, Barry J. McMillion, notes the more deferential Senate theory without endorsing its framework: “The Framers…contemplated the Senate performing an advisory, or recommending, role to the President prior to his selection of a nominee, in addition to a confirming role afterwards” (McMillion 5-6). Here, McMillion’s depiction of a more deferential Senate role seems to mirror the text of the Appointments Clause (Art. II, Sec. 2, U.S. Constitution). While the Senate —whether individually or collectively — can recommend to the President a set of potential Supreme Court nominees, the President would be the one in charge of nominating (Gauch, 351; Grossman & Wasby, 559; Ross, 642; Fisher, 21-27). Then, the Senate would offer a deferential response through a confirmation vote by the Senate body. The ambiguous language of the Senate’s advice and consent function in the Supreme Court confirmation process makes it difficult to understand the role of individual senators. The literature does not clarify how much depth the Senators could individually — or collectively — influence the President to nominate someone to the Supreme Court, save for Schweitzer’s work. Such a deficiency of existing discourse on an individual senator’s impact on the confirmation process can be an avenue for further research. When discussing the role of individual senators, some scholars have commented on possible actions. McMillion stresses the importance of the role an active Senator can provide by “candidly inform[ing] a President of their objections to a prospective nominee”. In informing the President, the senator “may help in identifying shortcomings in that candidate or the possibility of a confirmation battle in the Senate, which the President might want to avoid” (McMillion, 6). Here, McMillion suggests that an active, individual Senator can make a difference in reviewing potential Supreme Court candidates. However, some scholars argue that a single Senator’s ability to block the nomination of a judicial candidate during the confirmation process —whether through a filibuster (Schweitzer, 916), or even a Senate Judiciary chairman (Denning, 28) — can be detrimental to the