The Constitution says the Senate’s role is “Advice and Consent” to the nominations made by a President. Let’s look for a minute at this. Recent political thinking has been for the Senate to defer to the President’s wishes. This argument for deference rests on the idea that the president, elected by the people, is entitled to exercise his judgment on who should be officers of the executive branch and judges in the judicial branch. But, should they be doing that even if the President is of their own party?
However, this thinking fails to recognize the important difference between executive-branch and judicial-branch nominations. It also completely ignores the ides of separation-of-powers doctrine embedded in the Constitution.
I agree a certain deference is due to nominees who would serve in the executive-branch. However, the Judicial-branch is different. Unlike executive-branch officials, federal judges do not work for the president and neither do they work for Congress. They are an entirely different branch of government.
Our doctrine of separation of powers demands that both the legislative and executive branches have an equal voice in who become federal judges with lifetime appointments. The Senate by giving undue deference, cedes the executive branch too much power over what is supposed to be an independent and separate part of our federal government.
By allowing the executive-branch virtual dictatorial control over judge’s appointments places them under the control of the executive-branch. They by virtue of the Constitution the judicial-branch must be a wholly independent branch of government.
The Senate has an absolute duty to delve deeply into the judicial philosophy of such nominees. Regardless of party affiliation. The Senate must ensure that any nominee’s past history and prior statements demonstrate an uncompromising fidelity to the Constitution as written. These days, all nominees profess that fidelity because their handlers tell them they must do so to get confirmed. It is up to the Senate to investigate the credibility of such claims based on the nominee’s overall record, a record that provides actual evidence of his or her view of the Constitution and the rule of law.