When it comes to the Senate's Advise and Consent role I think that the Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch.

My view also remains consistent - that in fact the Senate owes the President no deference in his judicial choices and that the Senate is well within its rights to reject a President's judicial nominee on the basis of ideology. I believe that a judicial nominee is proposed to join the third branch of government and the Senate has the right and duty to consider what the makeup of that branch should be, just as the President does. More . . .

Zywicki makes reference to the Federalist Papers supporting his positions. I do not see it. But let's start first with the Constitution:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

-Article II, Section 2 of the United States Constitution

(Emphasis supplied.) As you can see, the President is granted certain powers either with the "concurrence" of or "by and with the Advice and Consent" of the Senate. Significantly, Article II, Section 2 of the Constitution also states expressly that "the Congress may by Law vest the Appointment of . . . inferior Officers, as they think proper . . ." thus, read literally, this provision allows Congress to strip the President completely of the power to appoint judges below the Supreme Court. This reading is consistent with Article I, Section 8, which provides that "the Congress shall have power . . . To constitute tribunals inferior to the Supreme Court . . ."

Clearly then, the text of the Constitution does not support in any way the concept of Legislative deference to the Executive regarding courts and judges inferior to the Supreme Court. The Congress can completely do away these courts or eliminate the President's power to appoint inferior judges. It is simply impossible to imagine then that the Senate must defer to the President regarding the nomination of inferior judges.

What then of nominations to the Supreme Court? I see nothing in the text of the Constitution that supports the view that the Senate owes the President deference regarding such nominations. Certainly no one argues that the President is due "deference" regarding treaties. As a matter of policy and the structure of government, I believe the Senate SHOULD give the President deference regarding his choices for the Executive Branch. I believe my view is buttressed by Article II, Section 1 of the Constitution:

Section 1. The executive power shall be vested in a President of the United States of America. He [A textual reading of the Constitution would imply that women are not eligible for the Office of the President. Do we need an amendment? What would Scalia say?] shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected . . .

(Emphasis supplied.) In our system of government, the People elect a President and in that President is vested the Executive Power. For positions in the Executive Branch, it is my view that deference should be granted to the person elected by the People to wield that power in his choices for the Executive Branch.

But the Supreme Court, in which the Judicial Power is primarily vested, is not chosen directly by the People. It is chosen by the person chosen to direct the Executive Branch, the President, and the persons who were elected to sit in the Senate by the People. This structure logically, at least to me, creates a shared power between the Executive and the Senate. The President nominates and the Senate decides whether the President's nominee is acceptable to them.

Among the criteria the President considers when choosing a nominee for the Supreme Court is the judicial ideology and views on particular issues that a nominee holds. Logically, the Senate should be able to make the same considerations.

Do the Federalist Papers contradict this conclusion? No. In Federalist 48, Madison wrote:

In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. . . . But in a representative republic, where the executive magistracy is carefully limited . . . The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.

Ironically, Madison is here assuaging fears regarding Executive overreach, stating that it is the Legislative Branch that has the upper hand in our Constitution. Would that it actually operated so. But my point is made. The Senate is granted power over the President's nominees to the Supreme Court and no deference is required by the Constitution.

In Federalist 51, Hamilton wrote:

In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle [or selection by the People]: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

Hamilton's point here is that is is permanent tenure that secures the independence of the judiciary, not the mode of choice. The mode of choice is a shared power between the Executive and the Senate. But Hamilton is clear on which Branch is superior:

In republican government, the legislative authority necessarily predominates.

Surely not an argument for Senate deference to a President's choice for the Supreme Court.

In Federalist 76, Hamilton directly addresses the President's appointment power and its relation to the Senate:

[I]t has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. . . . [T]here is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.

(Emphasis supplied.) Perhaps it would surprise Hamilton to see it now generally accepted that in fact the Senate is duty bound to bow to the wishes of the President without regard to differing views on ideology and philosophy. Yet that is the proposition as it is now generally viewed.

I respectfully dissent from that view.

Speaking for me only