Too Much Advice and Not Enough Consent: How the Senate’s Questions in a Highly Publicized Confirmation Process Undermines Presidential Appointment Authority and Judicial Independence
I. INTRODUCTION
Senate confirmation hearings have become quite the spectacle over the past few decades. What once was a process without much fanfare has now become a cable broadcast favorite. How did we go from secretive, black-box voting based on a candidate’s qualifications and political popularity to a system where Senators attempt to glean from a nominee’s confirmation hearing how that nominee would rule in any and every case that comes before them?
The Senate, through questions about whether a nominee is an “originalist,” “textualist,” “living constitutionalist,” “legal realist,” or other superlative, attempts to perform exactly this type of appraisal. Similarly, when senators inquire into a nominee’s opinion on already-decided cases, they are either trying to gauge the likelihood that the nominee will overturn the precedent or preemptively pressure them into not overruling the precedent. This paper seeks to show that when the Senate engages in this behavior, it violates the separation of powers principles embodied in the Constitution’s general governmental scheme as well as those same principles enacted specifically within the Appointments Clause.
Part II will discuss generally the separation of powers aim of the United States Constitution, specifically as it relates to an independent judiciary. It will then discuss the Appointments Clause, including the power of the Senate to provide advice and consent, and what these powers were understood to consist of at the time of the Constitutional Convention debates and the subsequent ratification of the United States Constitution. It will also survey the application of the Appointments Clause and senatorial practice from the eighteenth to the twentieth century. Finally, it will discuss modern-day senatorial practice regarding the confirmation process, providing examples of questions that demonstrate the Senate has stepped outside its constitutional bounds. Part III will discuss specifically how the senatorial practice outlined in Part II departs from the Framers’ understanding of the appropriate role of the Senate in providing advice and consent.