The Role of the Senate in Judicial Confirmations

Abstract

Professor Kmiec and Mr. Mincberg participated in a debate on June 7, 2002 sponsored by the Federalist Society and its Federalism and Separation of Powers Practice Group on the role of the Senate in judicial nominations. This article is a transcription of the debate.

Professor Kmiec begins his presentation with a discussion as to why President Bush’s judicial nominees have a lower confirmation rate than those of prior Presidents. Professor Kmiec asserts that it is an abuse of constitutional authority for judicial nominees, who are defeated in committee, to not be sent to the full Senate for deliberation and disposition. Constitutional responsibility is lost when committees displace the authority intended for the full chamber. Professor Kmiec posits that, while judicial intervention should not be a preferred course to remedy the issue, judicial review may be a viable means to correct the separation of powers violation caused when a committee usurps the role of the full Senate. He concludes by urging the Senate Judiciary Committee to exercise stewardship to bring judicial nominations to a full Senate vote.

Mr. Mincberg counters that it is fanciful to hold the view that it violates the Constitution for the full Senate not to vote on nominees. The language of the Constitution does not suggest that the Senate much actually vote in full on a nominee. Historically, the full Senate has not voted on nominations that did not make it out of Committee. Mr. Mincberg also challenges the statistics relied upon by Professor Kmiec and argues that there are fewer court vacancies than there have been in more than six years.

Keywords: senate, judicial confirmations, judicial nominations, separation of powers, federalist society, judicial nominees, judiciary committee

JEL Classification: K49