Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 7 Kasper’s view, among others, contrasted Fein’s view in that he believed that “some political partiality would be acceptable in judicial appointments” (555). Kasper, and other researchers held to this view of the Supreme Court confirmation process given Madison’s view on rejecting Supreme Court nominees (Gauch, 347; Grossman & Wasby, 561; Ross, 634-5; Harris, 43). Many arguing for the more active Senate believed that the Senate should be afforded the opportunity to find out where the nominee stands on judicial philosophy, moral vision, and the overall role of the Supreme Court (Kagan, 934). In his book, former Solicitor General of the United States Theodore Olson discusses the major problems with contemporary Supreme Court confirmations including the “nothing is off-limits” mentality that plagues the Supreme Court confirmation process (9-23). Olson contends that the Senate’s role should be passive and only act in response to the President’s nomination. Olson suggests that the Senate has transcended its constitutional role in its partisan evaluation methods for Supreme Court nominees. Other scholars would agree with Olson’s view of allowing for more deference to the President’s nominee to the Supreme Court (Ross, 161). However, some researchers counter this argument, asserting that throughout history, the Senate’s deference has simply amounted to “rubber-stamping,” and it is not true to the spirit of the Constitution (Friedland 175; Carter, 85; Carter, 159). Dr. Steven Friedland — a Law Professor at Elon University School of Law— contends that the ratification model does not allow room for the Senate to do its due diligence in fulfilling its advisory role. Moreover, Professors Joel Grossman and Stephen Wasby argue against the notion that the same deference accorded to a president’s cabinet nominee should be extended to judicial nominees as an “unsound argument” (561). Grossman and Wasby believe there are fundamental differences between the judiciary and the cabinet that necessitate a deeper evaluation of judicial candidates: duration of office; the judiciary is a co-equal branch; presidential actions were political (561). Several scholars — especially those favoring an active Senate role in checking presidential appointments — strongly believed in a collaborative nature between the legislative and executive branches on the appointment of the judiciary (Kasper 556-7; Ross, 653; Fisher, 35; Lively; Carter, 85; Gauch 340-1). Moreover, Kasper argues that Hamilton anticipated an energetic role for the Senate, one in which the Senate would be “actively offering ‘advice’ on whom future Supreme Court nominees should be” (568). Arthur Bestor, Professor Emeritus at the University of Washington, writes that the Founders at the time understood “by and with the advice and consent of the Senate” to mean that the Senate would be directly involved in consulting with the President where constitutionally applicable (726). In doing so, Bestor and Kasper each offer the reader an example of how the Senate and the President can interact when it comes to the appointment process. The Founders’ level of distrust for the government served as the rationale for a collaborative format in nominating candidates to the Supreme Court (Weaver, 1724). Moreover, Weaver discusses the nature of checks and balances as well as the separation of powers as installed by the Framers’ in order to provide a check on the President’s selection power. Weaver describes the system as purposefully inefficient (1752-53). McMillion also pointed out that senators have grasped the critical importance of the function they serve in checking presidential appointments to the third, co- equal branch of government, and have done their due diligence overall in their review of those candidates (2). Donald Lively writes that it is even unconstitutional if the Senate does not diligently review the nominee (Lively).