Toward a Judicial Bulwark Against Constitutional Extravagance - A Proposed Constitutional Amendment for State Consent Over Judicial Appointments

Imagine a championship football game where one team is allowed to pick all of the referees. Since the beginning of our nation, the line dividing federal and state power has been debated. But it has been decided in the federal courts, where judges were originally chosen by the President with the consent of a Senate that was chosen by the legislatures of the States. Federal judges are still chosen by the President with the consent of the Senate, but the Senate is no longer chosen by the States. With this constitutional change that proponents wrongly argued would not affect state sovereignty, the States lost an important say over the make-up of the federal judiciary that the framers intended for them to have. A constitutional amendment giving each State the power of consent over the federal judges appointed in the jurisdiction of that State is one possibility to give States more say over the referees who will decide the placement of the line between federal and state power. By no means an answer to all constitutional excess, such an amendment—which would likely have both populist and state appeal—is a mechanism to lay the groundwork for moving application of the Constitution back to the framer’s intent