Channels, Fall 2019

Page 8 Wilt • It Wasn’t Supposed to be Easy Eric Kasper also points to the Federalist Papers’ authority in his research, specifically tracking James Madison’s argument for the necessity of checks and balances to counteract the depravity of man and man’s ultimate desire to accomplish his own ambition (545). Kasper quotes Hamilton at length to describe the more active role the Senate should pursue within the judicial confirmation process — especially for the Supreme Court nominees, given that the Supreme Court is a third, co- equal branch of government (557). Other authors cite this theme of human depravity and a distrust of the government frequently (see Madison’s Fed. Nos. 48-51). Stephen Friedland authors a rebuttal to Weaver’s article. Friedland writes that this system develops an outlet for transparency and allows for the Senate to properly check the President by fully investigating and evaluating the nominee (177-178). Friedland believes this advice and consent function will serve as a check to the presidential appointment in a way that will even “modify the behavior of the participants” (177). Another interpretation of the Appointments Clause — as an extension of the active Senate model — holds to the notion that the Senate is constitutionally obligated to offer advice to the President as well as consent to the nominee through a thorough review of each nominee (Herman; White; Fisher). Most of the scholarship that demands a vote on any Supreme Court nominee stems mostly from recent statements. Specifically, modern Presidents like President Obama in 2017 and George Bush in 2005 articulated that the Senate held a constitutional obligation to vote on the President’s nominee (Herman, 2-3). Adam White, however, opposed the notion that the Senate must hold a full- body, up-or-down vote on every Supreme Court nominee presented by the President (109). Critically acclaimed separation of powers scholar, Louis Fisher argues that the Constitution’s vagueness affords the Senate some flexibility in its dealings with potential Supreme Court nominations (34-35). Both White and Fisher would argue that the U.S. Constitution does not explicitly call for the Senate to act on all nominations (White, 109; Fisher, 34-35). Supporting Fisher’s assertion, Herman provides a textual analysis of the Appointments Clause and correctly points out that the Appointments Clause does not contain a “shall” that would require the Senate to officially act (2). Moreover, Fisher argued that the Senate does not even have to hold hearings or review the nominee, as it is within the scope of the Senate’s powers to withhold its advice and consent power by either dragging out the timetable on the confirmation process or killing the nomination by not holding hearings (34-35). To that end, there are a number of resources that discuss the confirmation processes that the Senate has undertaken since the adoption of the U.S. Constitution (see Suggested Further Readings). Additionally, there are a lot of references to review the extent of support each nominee received in their respective confirmation hearings as well as the length of the process. Epstein, Segal, Spaeth, and Walker pulled together a massive compendium on the Supreme Court that reviews these processes (374-424). Moreover, the Senate itself has established a number of rules, precedents, and traditions by which it operates. As a formal institution, these rules — though sometimes archaic by nature — govern the processes and proceedings of the Senate. Therefore, it is important to note where those resources can be found. Martin Gold offers a comprehensive, up to date listing of those rules that govern the appointment process. Gold’s work states that the Senate can utilize the traditions and precedents it has established to slow down or kill a Supreme Court nomination (Gold, 216-17). Contrastingly, Schweitzer contends that by not completing an evaluation of the nominee — especially if a single senator chooses to filibuster the nomination — then the Senate is sequestering too much power from the President. Schweitzer would oppose Fisher’s assertion that the Senate is