[Opinion] The Senate Does Not Understand “Advice and Consent”

unnamedDemocratic Senate Minority Leader, Chuck Schumer (D-NY). Photo: J. Scott Applewhite/Associated Press

Following the retirement of Justice Anthony Kennedy, President Donald Trump nominated Judge Brett Kavanaugh to the highest court in the land. With blinding speed, senate Democrats from across the country were quick to disavow Kavanagh, hurling the typical labels of “racist,” “sexist,” and “misogynist” at him that we’ve come to expect against anyone that the president nominates. The current levels of polarization and party politics now lead Democrats, as the Republicans before them, to yet again fail to carry out their constitutional requirements.

After the evident failure of the Articles of Confederacy, the founders imagined a stronger federal government; in Article II of the constitution they designated the power to appoint judges, ambassadors, and other executive branch officials to the president. But it is worth noting that this power is not unlimited. As stated in Federalist Paper 69, the executive of the United States is less absolute than the king of Great Britain in his appointments because the executive must receive the advice of and secure the consent from the Senate. Today, just as with Washington’s words against the formation of political parties, the meaning of “advice and consent” is ignored. Instead of evaluating a nominee on his or her merits, they turn confirmation into yet another game of political posturing to exert control over yet another branch of government outside of their formal jurisdiction.

Simply put, advice and consent is a technical process. Senators are to look over a nominee’s record and assess whether or not they have the technical qualifications—not the correct ideology—to do the job. Even before the president nominated Kavanaugh, Democratic senators Schumer (D-NY) and Casey (D-PA) declared that any of Trump’s nominees would be a pick against women’s rights, equality, and progress. Remember that the same labels were pinned on Justice Gorsuch when he underwent his own confirmation process. Gorsuch, and hopefully like Kavanaugh after him, survived all-out assault from the Democrats over Roe v. Wade and political bias, citing that any discrimination on his part would be a direct violation of the constitution. Despite this and his evident qualifications, Gorsuch received votes from only three Democratic senators.

If Gorsuch, one of the most accomplished nominees to ever be picked for the Supreme Court, wasn’t considered qualified, then who would be? No one of a textualist bend, and especially no one nominated by President Trump. Judge Kavanaugh served 12 years on the D.C. federal court circuit and has the highest number of rulings to be cited and upheld by the Supreme Court in our lifetime. He is a consistent textualist, and in line with being a strict textualist, he believes it his honest duty to remain politically unbiased in his rulings. Instant opposition to his nomination was already assured. No matter what Kavanaugh says, does, or did, he will be loathed by the other side. This effect of political polarization on this process is a direct misconstruction of the senate’s role in “advice and consent.”

Until 1991, the confirmation process was more bipartisan and honest. Starting with the infamous confirmation of Justice Clarence Thomas, we began to see nearly perfect partisan splits against presidential nominees. Thomas’ frustration with partisan attacks during his confirmation process made him call the process a “travesty” no different from a “high-tech lynching.” This hyper-partisan split led Republican senators to deny Judge Merrick Garland the chance to even have a hearing following the 2016 death of Justice Antonin Scalia. No matter which side one takes, this abuse of the confirmation process must end.

unnamed-2Mass email sent from the left-leaning women’s organization disavowing the future Trump Supreme Court nominee. Photo: Jason Sehar/ Twitter

Senators have ignored the founders’ wishes to have nominees’ approval based on their merit, instead turning to their selfish need to score brownie points with party bosses and the base. Most importantly, “advice and consent” does not even guarantee the senate the right to total authority over the nominee. The power to appoint rests exclusively with the executive; the senate may only determine whether the nominee is qualified to the office to which he or she is appointed.

All citizens must urge senators on both sides of the aisle to ignore partisan preference during the confirmation of nominees. It is the job of the senate to gauge whether or not a nominee is qualified, not–as done in recent years–to force the president’s hand. To bring back some semblance of decency and bipartisanship to the senate there is only one option: we must allow Judge Kavanaugh to be judged solely on his merits. Nothing else.

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