Tuesday, June 14, 2005

Constitutional Checks and Balances in Judicial Appointments

Lately, a few senators, including Lindsey Graham (R-S.C.), have suggested that Pres. Bush should (or must) discuss or collaborate with the Senate before making judicial appointments, particularly for the Supreme Court. The compromise deal by the group of 14 also encouraged the President to consult with the Senate before nominating a judicial candidate.

As a matter of constitutional checks and balances, the Senate would be unwise to require the President to have prior consultations on judicial nominees. The Constitution vests the power of nominating judges solely in the President. The role of the Senate is to give its advice and consent on the nominees before they may be appointed to the federal bench. The separation of powers on judicial appointments is an important check and balance on the powers of the executive and the legislative branches.

By excluding Congress from a role in nominating judges, the Constitution prevents Congress from accumulating too much power. As set forth in the Constitution, the Senate has no say in choosing judicial nominees, and the President has no say in the Senate's confirmation process.

This separation of powers helps to protect the independence of the judiciary. If the President could appoint judges without a Senate review, judges would be less independent of the President. After all, if the President had no Senate review, he would be more likely to select judges with a greater emphasis on political reliability.

Similarly, if the President could only nominate individuals pre-approved by the Senate, the President's personal judgment of the relative qualifications of candidates would be reduced or nullified. Thus, the President's influence over the judiciary would suffer. The Senate would be in a position to exclude nominees preferred by the President. The Senate could, and probably would, insist on the nomination of its own choices by refusing to confirm any others. In effect, judges would be chosen through the Senate's often crude political process of trade-offs, lowest common denominators, and protection of personal prerogatives.

The branches of the federal government naturally compete for power. Allowing the Senate to "consult" on judicial nominations will lead to a Senate veto over the judicial nominations. The Senate will naturally favor its own preferred candidates and will seize on the President's rejection of one of its choices as a reason to reject the President's own nominee. Down this road of consulting and collaboration lies increased Senate power and marginalization of the President's input in judicial nominations.


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