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71 Tex. L. Rev. 633 (1992-1993)
President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein

handle is hein.journals/tlr71 and id is 653 raw text is: Essay

The President, the Senate, the Constitution,
and the Confirmation Process:
A Reply to Professors Strauss and Sunstein
John 0. McGinnis*
In a recent essay, The Senate, the Constitution, and the Confir-
mation Process (The Confirmation Process), Professors David Strauss
and Cass Sunstein contend that the process for confirming Justices to the
Supreme Court is now deeply flawed.' Accordingly, they believe the time
is ripe for reforms that in their view would better conform the process to
the historical understanding of the Appointments Clause's2 structure.
Crucial to their proposal is the assertion that the advice and consent
requirement in the Appointments Clause assign[s] ... an advisory role
to the Senate in advance of the President's nomination of a Supreme Court
Justice.' Specifically, they argue that the Senate, at least when controlled
* Assistant Professor, Benjamin N. Cardozo School of Law. B.A., 1978, Harvard; M.A., 1980,
Balliol College, Oxford; J.D., 1983, Harvard. During the confirmationhearings ofJudgeRobert Bork,
Justice Anthony Kennedy, and Justice David Souter to the United States Supreme Court, I was Deputy
Assistant Attorney General at the Office of Legal Counsel, Department of Justice. I had, however, no
involvement in the Department's efforts on behalf of these nominees. My thanks to David Gray
Carlson, Michael Carvin, Robert Delahunty, Mark Edelman, Michael Herz, Arthur Jacobson, Douglas
Kmiec, Nelson Lund, Frederick Nelson, Michael Paulsen, David Rudenstine, Stewart Sterk, and Paul
Shupak for helpful comments on earlier drafts. David Katz provided valuable research assistance and
much insight into the historical sources discussed here. I would also like to thank Columbia Law
School Library for providing me with access to many of the historical sources cited here.
1. David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation
Process, 101 YALE L.J. 1491 (1992). This essay has already achieved substantial prominence, having
been favorably cited within two months of its publication by the Chairman of the Senate Judiciary
Committee in his discussion of reforming the confirmation process. See Joseph R. Biden, Jr.,
Reforming the Confirmation Process: A New Era Must Dawn 4 (June 25, 1992) (transcript on file with
the Texas Law Review).
2. U.S. CONST. art. H, § 2, cl. 2 ([The President] shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law .... .
3. Strauss & Sunstein, supra note 1, at 1495.

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