Supreme Court power play: Assessing the Appropriate role of the senate in the confirmation process

In sum, seventeen of the twenty-one Supreme Court nominees rejected by the Senate during the nineteenth century were rejected for political or ideological reasons.55 Hence, a thorough examination of the creation of the "advice and consent" phraseology and its early implementation by the Senate provides little support for the position taken by some commentators, that an active and political senatorial role has no historical foundation.56

III. The Struggle for Selection Power

A. The President and Senate as Judicial Selectors As the preceding historical account of the confirmation process tends to suggest, a very political struggle for judicial selection power exists between the executive office and the Senate. At the heart of this struggle for power is the issue of whether the Senate may engage in the same substantive ideological screening process that even those advocating a constrained role for the Senate admit that presidents undertake.57 As a judicial selector, the President has the capacity and political incentive to influence significantly Supreme Court policy through nominations. In the absence of an active Senate response and ideological inquiry, presidential nominations based on a candidate's political ideology quickly become rubber stamp appointments, and thus the President can mold the Court in his own image with no meaningful democratic check. The American constitutional system is based upon a separation of powers principle that presupposes that no single branch of the government is to dominate pervasively.58 This basic principle is endangered, however, if the President endeavors to shape the ideological composition of the judiciary and the Senate merely defers to the President's judgment.59

Advocates of a constrained senatorial confirmation role make the argument that an active inquiry into a nominee's substantive views by the Senate threatens to compromise the judiciary's independence and to politicize the appointment process.60 However, it is evident that the federal judicial selection process is already politicized because of the executive office's use of ideological screening processes in selecting nominees.61 When the President is guided by political and ideological considerations in selecting nominees, it seems logical for the authority obligated to render advice and consent to review those same considerations.62 Furthermore, the argument that policy-oriented debate during confirmation demeans the judiciary ignores a well-established constitutional principle favoring precisely such a focus.63 The integrity of the confirmation process is truly demeaned not when the Senate focuses upon a nominee's ideological views, but when it does so and pretends that it has not.64 This rather uncomfortable selection process, whereby senators actually vote on nominees based on political concerns while espousing politically neutral reasons, has been labeled by one commentator as "the mask of nonpartisanship."65

Another argument advanced in favor of a constrained Senate role is the proposition that executive nominations based on a candidate's ideological