I. INTRODUCTION<\/p>\n
Senate confirmation hearings have become quite the spectacle over the past\u00a0few decades. What once was a process without much fanfare has now become a\u00a0cable broadcast favorite. How did we go from secretive, black-box voting based\u00a0on a candidate\u2019s qualifications and political popularity to a system where\u00a0Senators attempt to glean from a nominee\u2019s confirmation hearing how that nominee would rule in any and every case that comes before them?<\/p>\n
The Senate, through questions about whether a nominee is an \u201coriginalist,\u201d\u00a0\u201ctextualist,\u201d \u201cliving constitutionalist,\u201d \u201clegal realist,\u201d or other superlative, attempts\u00a0to perform exactly this type of appraisal. Similarly, when senators inquire into a\u00a0nominee\u2019s opinion on already-decided cases, they are either trying to gauge the\u00a0likelihood that the nominee will overturn the precedent or preemptively pressure\u00a0them into not overruling the precedent. This paper seeks to show that when the\u00a0Senate engages in this behavior, it violates the separation of powers principles\u00a0embodied in the Constitution\u2019s general governmental scheme as well as those\u00a0same principles enacted specifically within the Appointments Clause.<\/p>\n
Part II will discuss generally the separation of powers aim of the United States\u00a0Constitution, specifically as it relates to an independent judiciary. It will then discuss the Appointments Clause, including the power of the Senate to provide\u00a0advice and consent, and what these powers were understood to consist of at the\u00a0time of the Constitutional Convention debates and the subsequent ratification of\u00a0the United States Constitution. It will also survey the application of the\u00a0Appointments Clause and senatorial practice from the eighteenth to the twentieth\u00a0century. Finally, it will discuss modern-day senatorial practice regarding the confirmation process, providing examples of questions that demonstrate the Senate\u00a0has stepped outside its constitutional bounds. Part III will discuss specifically\u00a0how the senatorial practice outlined in Part II departs from the Framers\u2019 understanding of the appropriate role of the Senate in providing advice and consent.<\/p>\n