An even-numbered court would probably be more functional and less divided.
Read MoreFacts are stubborn things
Read MoreRepublicans should stop treating Kavanaugh like a client whom they are protecting from opposing counsel in a hostile deposition
Read MoreAdvise and consent bears resemblance to the process envisioned in the Constitution
Read More“In reality, we rationalize, we deny, or we couldn’t go on confirming.”
Read MoreFor today’s senators, the ends always justify the means
Read MoreA deadlocked court would be better for the future of U.S. politics.
Read MoreThe debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.
But that represents a flawed understanding of the Constitution’s Appointments Clause and the separation-of-powers doctrine on which it is based. Senatorial deference, far from facilitating the proper working of the confirmation process, risks undermining the judiciary’s independence as a coequal branch of government by making the Senate less likely to check the President in determining the composition of the federal bench.
What is healthy, and constitutionally legitimate, is competition between the Senate and the President in the confirmation process. Competition makes it more likely that the judges and justices who are ultimately confirmed will discharge their duties in a manner consistent with the Framers’ designs.
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