The Legislative Seems to Be Pushing Back the Power of the Executive in One Area

It's appellate and Supreme Court judicial appointments.

|The Volokh Conspiracy |


Apropos this morning's item about Congress generally not reining in the President, I thought I'd note one area where the Legislative branch—or, to be precise, its upper House—has clawed some power away from the Executive: Court of Appeals and Supreme Court judicial appointments.

At least for much of the late 1900s, the President has been seen as having broad latitude to appoint such judges, even when the opposite party ran the Senate. Some appointments, to be sure, were blocked (especially before the filibuster was abolished, and the senatorial blue-slip policy weakened, for such matters), but on balance the Senate largely deferred to the President's choices.

It seems likely that this has changed, at least for the foreseeable future. When the President and the Senate are from the same party, appointments will go smoother than before (because of the abolition of the filibuster). But when they are of opposite party, I expect that there will likely be a lot of pushback from the Senate. Perhaps spots will be left vacant, at least for a short while (and especially on the Courts of Appeals). Or perhaps deals will be worked out, for instance ones through which the President proposes one seemingly liberal candidate and one seemingly conservative one.

I'm not claiming that this is a good development or a bad one; I'm just trying to point out that this is one area where the Legislative/Executive power balance has been shifting a bit to the Senate (or at least to the majority party within the Senate).

The Constitution, of course, gives both branches a role in judicial appointments—the President to nominate, and the Senate to decide whether to consent (and also to give "advice")—but leaves disputes to be resolved through the political process. The resulting compromise positions can be tugged to and fro by the branches, as the party leaders' and members' preferences change. As I understand it, in the late 1900s the pattern was chiefly that the Senate had a lot of power over District Court appointments but the President had the great bulk of the power over Court of Appeals appointments and especially Supreme Court appointments. Now we're seeing that ebb away from the President, though of course that too is a political shift that could be reversed in future years.