The Framers and Advice and Consent

The Framers never contemplated that the president would be a member of one of the contending [political] parties. Instead, they seemed to believe that the president would stand above factional strife.

.[T]he [Framers'] decision to locate the primary appointment power in the executive branch was intended to insulate the nomination process from the effects of parties in the legislative branch. This decision can be described as a failure, given that the president today is always a member, if not the leader, of a party. The Senate's role in the system of checks and balances, however, enables it to counterbalance the partisan efforts of the president.

If individual senators perceive that nominations are based on political considerations, including partisanship and ideology, then they may properly exercise their prerogatives to counteract the partisan designs of the opposing faction. Such behavior is impossible to condemn in terms of the system of checks and balances built into the Federal Constitution. It is not the contemporary Senate Democrats who politicized the process-it was, instead, the Framers themselves.

The right of unlimited debate [commonly known as filibuster], subject only to cloture, which is based in Senate rules rather than in the Constitution itself, is one of the more important of these [senatorial] prerogatives.

Excerpted from Emery G. Lee III, "The Federalist in an Age of Faction: Rethinking Federalist No. 76 on the Senate's Role in the Judicial Confirmations Process," 30 Ohio N.U.L. Rev. 235 (2004).

Focus Questions:

1. What do you think of the author's argument that the decision to give the president the primary appointment power is a failure?

2. How might the current judicial nomination process actually maintain the separation of powers among the three branches of government even though the Framers never thought the president would be the leader of a political party?

3. Why do you think the Framers wanted to insulate the judicial nomination process from the effects of political parties?

4. If the Framers never believed that a president would be the head of a political party, do you believe that the Senate's rules allowing for unlimited debate and filibuster are more or less important today? Why?