January 04, 2006

Has the Seventeenth Amendment affected the politicization of judicial confirmations?

The Seventeenth Amendment may be an under-examined contributor to the present politicization of the judicial confirmation process. In an insightful 1997 article, Jay Bybee notes that removing the election of senators from the hands of state legislatures and giving it to the people affected the advice and consent power in that it likely altered the partisan percentages in the Senate. Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 N.W. Univ. L. Rev. 500, 561-62 (1997). More importantly, however, he suggests that in severing the ties between state legislatures and the senators, the people actually had less control over the senators than they did before, and as a result, more power shifted to the Supreme Court to keep Congress in check. Id. at 568. Indeed, Bybee notes that the Seventeenth Amendment removed senators’ insulation from lobbyists. Under the old system, lobbyists had to convince the state legislature to support their position and issue instructions to the individual senators accordingly, but after the amendment, lobbyists contacted senators directly. Id. at 541.

Bybee argues from a stance of preserving state power in a federal system and makes no claim about politicization of judicial confirmations per se. But, if the Seventeenth Amendment shifted more responsibility to the Court, then it logically follows that Court opinions (and, in turn, the judicial philosophy of its Justices) would assume increasing importance. And, if the Senate in exercising its advice and consent power became simultaneously more concerned with judicial philosophy and more exposed to direct lobbying from interest groups, then the politicization of judicial confirmations seems a natural result.


By way of introduction, I am an attorney and sometimes writer (when not chauffering children to the park or reading bedtime stories) in Houston, Texas. I have three-year-old twin boys and a girl due next month. Most of my publications are on church-state issues and judicial nominations.

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