Supreme Court Power Play: Assessing the Appropriate Role of the Senate in the Confirmation Process

Abstract

The Bush Administration will likely have the opportunity to make a number of appointments to the Supreme Court; however, such nominations may lead to contentious confirmation hearings in the Senate. When such an appointment opportunity does present itself, questions are bound to arise concerning the appropriate role of the United States Senate in the confirmation of Supreme Court nominees under the advice and consent provisions of article H of the Unite States Constitution. Disputes over the Senate \u27s proper role and scope of inquiry seem to emerge whenever a nominee has faced the confirmation process and have been a timeworn subject of legal debate. In this Article, we assess the proposition that the Senate should have an active role in the confirmation process, which includes investigation into a nominee\u27s ideological beliefs and constitutional philosophy. We begin by examining the background of the Constitution\u27s advice and consent phraseology and consider early applications of the confirmation process by senators during the eighteenth and nineteenth centuries. We then discuss the struggle for judicial selection power between the Senate and the President and conclude by suggesting the need for an active Senate response to executive nominations