Legal Commentary

What's Wrong With Advice And Consent?

By Big Tent Democrat

I guess I understand why some Dem bloggers are upset now that the Supreme Court confirmation process has become, horrors, "partisan." But I just am not one of them. Kevin Drum writes:

Elena Kagan was only barely confirmed to the Supreme Court yesterday, continuing a recent trend of court picks becoming ever more partisan. Jon Chait comments: [. . .] Th[is] trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster."

So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. [. . .P]erhaps some change is in order?

Why exactly is this a bad thing? Imagine a system where Scalia and Thomas were not on the Court? Imagine a system where the electorate realized that the Senate had to agree with the President on who should sit on the Supreme Court? Oh wait, that is how the Founders designed it:

[The President] . . . by and with the Advice and Consent of the Senate, shall appoint [. . .] Judges of the supreme Court[.]

What exactly is wrong with that system? Sure, I wish Obama would get a rubberstamp for his judicial nominees. But I sure would not want Republican Presidents to get them. That was sort of the point during the Bush Administration.

Speaking for me only

Full post as published by TalkLeft on August 07, 2010 (boomark / email).