The Limited Nature of the Senate's Advice and Consent Role

Abstract

This article reprints both the oral and prepared testimony provided to the U.S. House of Representatives, Judiciary Committee, Subcommittee on the Constitution, on October 10, 2002, at a hearing entitled, A Judiciary Diminished is Justice Denied: The Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary. In it, I contend that the Senate's role in confirming the President's judicial nominees is much more limited than has been claimed in recent years; that the President has the sole power of nomination, and the primary power of appointment, subject to a check by the Senate so that the appointment power is not abused to favor personal friends or supporters who were without merit. I also contend that Congress could, by legislation, assign the appointment of lower court judges exclusively to the President, because such judges are inferior officers, in constitutional terms.

Keywords: judicial confirmations, constitution, filibuster, appointment power, inferior officers

JEL Classification: H10, H11