Arguments For
Involving both the President and the Senate in the nomination process was a compromise hammered out at the Constitutional Convention. CRS notes that "Those who defend the use of filibusters against nominations note that one of the dominant themes during debates on the Constitution was how to protect the rights of the minority, something a filibuster is designed to do."Congressional scholars argue that a filibuster of a judicial nominee is critical because it ensures that a judge does not have an ideological bent -- helping ensure the independence of the judiciary as the third branch of government. It prevents a President from appointing partisan or ideological nominees when he and Senate leadership are from the same party.
Moreover, judges are appointed for life, so the decision to appoint a judge has long ramifications. The average tenure of a federal judge today is 24 years (that's four Senate terms, six Presidential terms or 12 House terms). (cite)
From the CRS: "Senator Robert P. Griffin (R-MI) noted in 1968 that, early in its history, the Senate rejected President George Washingtons nomination of John Rutledge to be Chief Justice of the Supreme Court. And, he continued:"
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That action in 1795 said to the President then in office and to future Presidents: 'Dont expect the Senate to be a rubberstamp. We have an independent coequal responsibility in the appointing process; and we intend to exercise that responsibility, as those who drafted the Constitution so clearly intended.'
Arguments Against
Although Sen. Frist voted against ending a filibuster of a Clinton judicial nominee (who went on to be confirmed) in 2000, in a speech to the Federalist Society in 2003, he said:-
This filibuster is nothing less than a formula for tyranny by the minority... The Senate cannot allow the filibuster of circuit court nominees to continue. Nor can we allow the filibuster to extend to potential Supreme Court nominees."
(cite)
Republicans and Democrats alike have argued in favor or against the filibuster, depending upon their position (majority or minority). Senator Orrin Hatch (UT), writes in National Review about a "tradition of giving nominations reaching the Senate floor an up or down vote." Unlike the official Senate history of filibuster, Hatch writes that the word origin is from "the Spanish filibustero, a filibuster was a mercenary who tries to destabilize a government."
Constitutional framers were not unanimous when granting the Senate the power of advise and consent. For example, in 1788, John Adams wrote Thomas Jefferson:
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You are apprehensive of monarchy, I of aristocracy. I would therefore, have given more power to the president, and less to the senate. The nomination and appointment to all offices I would have given to the President, assisted only by a privy council of his own creation; but not a vote or voice would I have given the Senate or any senator unless he were of the privy council.
Where it Stands
Revealing how politics makes strange bedfellows, the Washington Post writes, "The Gun Owners of America, a Second Amendment group even more hard-line than the National Rifle Association, is reminding its members that the filibuster has been used in the past to block a ban on semiautomatic guns, .50-caliber weapons, a ban on gun-show sales, and a trigger-lock mandate."Although CRS found that from 1949 to 2002, 35 presidential nominations (half of them judicial) had been filibustered, former White House counsel Borden Gray "claimed that the action by the Democrats in filibustering judicial nominees is unprecedented." (cite)
