The Senate is Supposed to Advise and Consent, Not Obstruct and Delay

Abstract

This article explores the original understanding of the Constitution's division of power between the President and the Senate with respect to judicial appointments. The President is given the sole power to nominate, and the primary role in appointment, while the Senate was understood as having a much more limited role, serving as a check on the President to prevent appointments for political favor, family connection, etc. What the founders did not envision was a co-equal role for the Senate--that would have undermined the kind of accountability that comes from assigning the principal role to a single individual: the President. And they particularly did not envision a minority of the Senate, using the filibuster, to impose an ideological litmus test on the President's nominees even for nominees who enjoyed the support by a majority of Senators.

Keywords: Judicial Confirmations, Constitution, Filibuster, Appointment Power

JEL Classification: H10, H11