Essay:
John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEXAS L. REV. 633 (1993).
 

Abstract:
Responding to the essay by Professors Strauss and Sunstein arguing for radical reform of the judicial nomination and confirmation progress, Professor McGinnis blasts their suggestions as failing to comport with plain meaning of the Constitution, inviting a collapse of important systemic governmental values, and supporting policy recommendations of dubious character. Professors Strauss and Sunstein argue, based on the high-profile and contentious Supreme Court nominations of the last twenty years and the unbroken record of Republican appointments, that the Senate should use its advisory function to decide upon a compromise candidate. The candidate’s name should be forwarded to the President, and then the candidate should be required to prove before the Senate both his character and the validity of his jurisprudential viewpoint. Moreover, this view of the nominations process is argued to comport with the Constitution and the original understanding of the process. Professor McGinnis annihilates the proposition that the proposal is historical, citing numerous factual errors and raising clear language to the contrary, such as the line from The Federalist reading “It will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint.” He continues by noting that an expanded role for the Senate would weaken the Constitutional division of powers by vitiating the Executive’s role; furthermore, such an expanded role would lead to bargaining early in nomination process, resulting in appointments of a lesser consistency and caliber than might be expected when nomination rests with the President alone. Lastly, Professor McGinnis repudiates some of the policy proposals forwarded by Professors Strauss and Sunstein and defends the traditional proposition that the Senate’s role in appointments is largely confined to rejecting candidates for serious and weighty reasons.