The Balance of Power in the United States’ Government
Since the United States is a presidential republic, the President serves as the head of the executive branch of government, Congress has legislative power, and the judicial branch interprets the laws. The Federal judiciary comprises the third judicial branch of the government, which has the power to interpret and declare the laws either constitutional or unconstitutional. For both Congress and the President to have control over the judicial branch, the President is given the authority to nominate candidates, and the Senate can approve or reject the confirmation of a nominee.
Judicial Nomination and Confirmation
When it comes to the judicial nomination and confirmation process, the Senate’s majority vote is the primary deciding factor in whether a nominee will be confirmed as a judge. However, the power to select the nominees resides with the President. They can withdraw the nomination at any time during the confirmation process. The dynamics of power among the President, Congress, and the Federal judiciary ensure that checks and balances are preserved as the nation is served.
President’s Response to the Senate’s Refusal to Confirm a Presidential Nominee
If the Senate refuses to confirm a presidential nominee, which happens rarely, the President can respond by nominating another candidate. It is stated that “in the past 100 years, the Senate has rejected three nominations on a recorded vote” (The Heritage Foundation par. 1). The Senate has the final say in the confirmation process since its duty is to advise and consent with respect to the selected nominees.
The United States Constitution states that 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” (Congress par. 4). It should be noted that two-thirds of the votes are necessary to finalize the confirmation of a judge. There is no explicit direct way for a president to retaliate or respond against the Senate’s refusal to confirm.
Moreover, recess appointments can be the sole case when the President can appoint and seat judges without confirmation for a limited term. It is stated that “the Constitution empowers the president to make this sort of limited-term appointment to fill a vacancy without Senate confirmation when that chamber is in recess” (The Heritage Foundation par. 45). For example, Barack Obama engaged in a recess appointment, which caused a great deal of controversy during his presidency. In other words, recess confirmations are plausible as a form of response to the refusal, but they have a limited duration.
Judicial Independence and Interbranch Disputes
Generally, there is no role for the Federal judiciary in legislative-executive disputes over judicial branch members. The reason is that it would create a problematic incentive for the federal court to intervene in the process of judge selection. Only in one case can the court be involved, which occurs when the President attempts to seat a judge without the Senate’s consent and confirmation (Kidd 45). In this case, the Senate would retaliate against the executive branch and impose punitive measures in response to the President’s unconstitutional actions.
Works Cited
Congress. “Browse the Constitution Annotated.” Constitution Annotated, 1787. Web.
Kidd, Thomas S. American History. B&H Academic, 2019.
The Heritage Foundation. “The Confirmation Process for Presidential Appointees.” Heritage, 2022. Web.