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Supreme Court Power Play: Assessing the Appropriate Role of the Senate in the Confirmation Process

18 Pages Posted: 22 Apr 2005  

Jeff Yates

Binghamton University - Department of Political Science

William Gillespie

Kennesaw State University

Abstract

The Bush Administration will likely have the opportunity to make a number of appointments to the Supreme Court, however such nominations may experience contentious confirmation hearings in the Senate. When such an appointment opportunity does present itself questions are bound to arise concerning the appropriate role of the United States Senate in the confirmation of Supreme Court nominees under the advice and consent provisions of article II of the United States Constitution. Disputes over the Senate's proper role and scope of inquiry have seemed to emerge whenever a nominee has faced the confirmation process, and have been a timeworn subject of legal debate. In this article we assess the proposition that the Senate should have an active role in the confirmation process which includes investigation into a nominee's ideological beliefs and constitutional philosophy. We begin by examining the background of the Constitution's advice and consent phraseology and consider early applications of the confirmation process by senators during the eighteenth and nineteenth centuries. We then discuss the struggle for judicial selection power between the Senate and the President and conclude by suggesting the need for an active Senate response to executive nominations.

Keywords: Law, legal, Supreme Court, senate, confirmation, nomination, president, founders, advice and consent, Bork, constitution

Suggested Citation

Yates, Jeff and Gillespie, William, Supreme Court Power Play: Assessing the Appropriate Role of the Senate in the Confirmation Process. Washington & Lee Law Review, Vol. 58, p. 1053, 2001. Available at SSRN: https://ssrn.com/abstract=704442

Jeff L. Yates (Contact Author)

Binghamton University - Department of Political Science ( email )

Binghamton, NY 13902
United States

William Gillespie

Kennesaw State University ( email )

1000 Chastain Road
Kennesaw, GA 30144
United States

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