The Contemporary President: Should the Senate Take a Floor Vote on a Presidential Judicial Nominee?

Abstract

President George W. Bush has argued that the Senate ought to hold final up-or-down floor votes on all of his judicial nominations rather than use various parliamentary procedures to prevent such action. Some scholars argue that there is no traditional mandate for such a demand, and that the Senate is well within its prerogatives to deny the president's request. This article revisits the question of Senate parliamentary procedures and the president's function to nominate individuals to the judicial branch. The article examines Founding-era debates to determine whether current practice comports with the logic and design of the system. By focusing on similar constitutional procedures from a separation-of-powers perspective, the article argues that filibusters of judicial nominations are not well founded in constitutional logic. The article concludes by evaluating whether such a change would lead to excessive presidential influence in staffing the judiciary.