In a recent issue of the University of Pennsylvania Journal of Constitutional Law, Chief Judge Peter J. Eckerstrom defended the view that the United States Senate has a constitutional duty, arising under the Appointments Clause, to meaningfully consider presidential nominees to the Supreme Court of the United States. He characterizes such Senate consideration as “obligatory,” “mandatory,” and an “affirmative constitutional duty” as opposed to merely aspirational or directory. Broadly, speaking he puts forward three primary types of arguments or evidence in support of his position: textual; purposive analysis; and, historical materials from ratification. Rather than critique Eckerstrom’s three modalities for understanding the Appointments Clause, I point out what Eckerstrom’s analysis lacks — a developed discussion of extant case law addressing this issue.
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