NOWHERE in the Constitution is the Senate required to provide an up-or-down vote on the President’s nominees:

Article II, Section 2 of the United States Constitution outlines the President’s power of appointment.  It reads:

“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

       The current controversy over nominees centers on nominations to the Circuit Courts, which are not mentioned in the Constitution at all.  The federal court system was created by The Judiciary Act of 1789 which divided the country into judicial districts and set up courts in each one.  

CONFIRMATION BY THE SENATE WAS NEVER INTENDED TO BE SIMPLY A MAJORITARIAN PROCESS.

§        Alexander Hamilton in Federalist Number 78 wrote that, "The independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors, which in the arts of designing men have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minority party in the community."

§        As Al Gore argued yesterday, “Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that might be needed to safeguard the nation against unwise choices for the judiciary by a partisan president, they might well have given the House as well as the Senate the power to vote on judges.”