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Show Hingkley Journal of Politics 2006 to his strained relationship with the judicial and legislative branches of government, angrily refused to enforce judicial decisions regarding Cherokee Indian removal policy. • In the mid 1930's, frustrated by a Supreme Court that derailed many of his constitutionally questionable New Deal proposals, President Franklin Roosevelt sought to legislate a reordering of the federal judiciary, and "pack" it with pro-New Deal judges. These presidential missteps serve as reminders of the critical role of checks and balances between the branches. The Senate role in judicial nominations is certainly one example of such checks and balances. A 60-vote confirmation standard urges executives to give consideration to both sides of the political aisle when appointing judges and fulfills Montesquieu's admonition of linking judging with political Moderation in order to obtain the political balance not found in republicanism or liberalism (Carrese, 2004, p. 12). It also gives life to Alexander Hamilton's statement, "political jarring promotes deliberation" (Hamilton, 1788a), a worthy goal for a Senate that refers to itself as the "greatest deliberative body in the world." Executives would also be mindful that if they rupture their relationship with the Senate, they will have to answer to a three-fifths majority for any judge they want on the bench. A Check on the Judicial Branch Both legislative and executive branch officials require a simple majority to obtain their respective offices, which raises the Question of why the judiciary should be any different. The following quote by Alexis De Tocqueville provides insight: As the people in democracies are more constantly vigilant in their affairs and more jealous of their rights, they prevent their representatives from abandoning that general line of conduct which their own interest prescribes. In the second place, it must be remembered that if the democratic magistrate is more apt to misuse his power, he possesses it for a shorter time. But there is yet another reason which is still more general and conclusive. It is no doubt of importance to the welfare of nations that they should be governed by men of talents and virtue; but it is perhaps still more important for them that the interests of those men should not differ from the interests of the community at large; for if such were the case, their virtues might become almost useless and their talents might be turned to a bad account (De Tocqueville, 1831, 1:14). ^e Tocqueville makes reference to democratic ballot accountability; the duty elected officials have to report to their constituents at some point and, if they desire further tenure in governance, request reelection. As De Tocqueville Points out, when an official in democratic government "is ^ore apt to misuse his power, he possesses it for a shorter tittle." Certainly this is true with legislators and executives; legislators must face reelection often- every two or six Years- and executives may only serve two terms no matter their job approval and efficiency. However, the judiciary is immune from this electoral °heck, and was constitutionally intended to be. This makes a thorough pre-confirmation examination all the more necessary when considering a nominee for a lifetime; an aggressive confirmation debate and 60-vote requirement greatly decreases the possibility of appointing those that may "differ from the interests of the community at large" and hence "their virtues become useless, and their talents turned to a bad account." Conclusion It is essential that the Senate take measures to decrease the politicization of the judicial nominating process. As current Senate Judiciary Chairman Arlen Specter stated "Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should, in substantive fact and in perception, be for all Americans" (Specter, 2005). Because the legislative and executive branches are heavily party-saturated, seeking bipartisan approval will help to confirm judges that are as nonpartisan as reasonably possible. This bipartisan participation also provides a necessary check on the executive and legislative branches. While the judicial branch also requires a firm check on its power, using the filibuster to block a judicial confirmation severely damages the integrity of both the judicial confirmation process and the filibuster itself. The Economist reported in May, 2005: Amid all this uncertainty, the filibuster debate has almost certainly harmed one institution: the Senate. It was deliberately designed by the Founding Fathers to be the deliberative branch of the American government. Senators, who sit for six years rather than the two years of the populist House, have long prided themselves on their independence. The politics of partisanship has now arrived in the upper chamber with a vengeance (Armageddon for the Senate, 2005, p. 29). These negative partisan feelings are being recognized by Senators and outside observers. A bipartisan letter addressed to Senate leadership from every freshman senator elected in 2002 stated: As the ten newest members of the United States Senate, we write to express our concerns about the state of the federal judicial nomination and confirmation process. The apparent breakdown in this process reflects poorly on the ability of the Senate and the administration to work together in the best interests of our country. The breakdown also disserves qualified nominees to the federal bench whose confirmations have been delayed or blocked, and the American people who rely on our courts for justice.. .All of us were elected to do a job. Unfortunately, the current state of our judicial confirmation process prevents us from doing part of that job. We seek a bipartisan solution that will protect the integrity and independence of our nation's courts, ensure fairness for judicial nominees, and leave the bitterness of the past behind us (Cornyn, 2003, p.49). American Bar Association President Alfred Carlton stated of the current judicial confirmation process: "There is a crisis in 69 |