Channels, Fall 2019

Page 6 Wilt • It Wasn’t Supposed to be Easy constitutional framework. Schweitzer sees this as an institutional issue that harms the overall confirmation process (916). Several senators have written about their responsibility of advice and consent. Senator Susan Collins (R-ME) spoke on the Senate floor about her decision to confirm Judge Kavanaugh to the Supreme Court in 2018. Based on Federalist No. 76, she has “interpreted this to mean that the president has broad discretion” in nominating a candidate, and that her position as a Senator is to “focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial thought” (Collins). Here, Senator Collins qualifies a more deferential philosophy to her advice and consent role. Senator Ben Sasse (R-NE) stated that the Senate must review whether or not Judge Kavanaugh has “the temperament and the character to take his policy views and his political preferences and put them in a box marked irrelevant set it aside every morning when he puts on the black robe” (Sasse). Joseph Harris quoted Senator Paul Douglas in his book The Advice and Consent of the Senate on page 302 about the role of the Senate: The “advice and consent” of the Senate required by the Constitution for such appointments was intended to be real and not nominal…By requiring joint action of the legislature and the executive, it was believed that the judiciary would be made more independent. There was a second advantage…This was that a Senator from a given state would normally know the ability, capacities and integrity of the lawyers and judges within that state better than could a President. Senator Douglas cites the belief the Founders had in producing a more legitimate judiciary through dual-appointment mode (Harris, 302). Scholars differ most over the Senate’s ability to review a potential Supreme Court nominee’s judicial philosophy, constitutional beliefs, or political tendencies. Such divergent opinions influence how the scholars support a more active or more passive Senate role. Bruce Fein argues that under the “Hamiltonian model,” judicial philosophy questioning could not be sufficient ground to reject a Supreme Court nominee (672). Fein believed that concerning the Bork hearings, Senators abused their advice and consent function by opposing his nomination based on ideological grounds of which they were not qualified to judge given their disposition to partisanship (673). Fein contributes to the literature in a unique way by pointing to how state legislature originally elected senators. Fein implicitly argues that re-election considerations should not be made when evaluating Supreme Court nominees (674). There is, however, more room to explore on the Senate’s original election methods, and how that impacted the Framers’ understanding of external forces factoring into Senators’ evaluation of Supreme Court nominees. Stephen Carter — a foremost thinker on the issue and a Yale law professor — discussed the ways for the Senate to review nominees. Carter argues that the Senate should assume that the nominee is unqualified and should actively seek to find out the nominee’s qualifications (159). Such an argument departs from the deference accorded to most Supreme Court nominees in years past (Fein; Ross, 681). However, Carter believes this should focus solely on understanding the Supreme Court candidate’s moral character, “legal aptitude, skills, and experience” (161-62), and should remain detached from his or her judicial philosophy and constitutional beliefs (Kagan, 931). Supreme Court Justice Elena Kagan finds this view both naïve and impractical. She believes that the Senate and President should review the nominee carefully and understand what the candidate’s vision of the Court is as well as how the candidate would influence the Court if appointed (934).