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Department/School of the Primary Author

History and Government

Keywords

U.S. Senate, U.S. President, U.S. Supreme Court, appointment power, separation of powers, checks and balances, advice and consent, Federalist Papers, U.S. Constitution

DOI

10.15385/jch.2019.4.1.1

Abstract

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it pertains to the U.S. Supreme Court in its nascent form, and argues for its importance for the independence and legitimacy of the federal judiciary. Additionally, this paper contributes to the literature by analyzing early documents and Constitutional Convention proceedings, and evaluating the original Senate election mode as it impacted the Founders' understanding of the Senate's 'Advice and Consent' role.

Creative Commons License

Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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