In Federalist No. 78, Alexander Hamilton argued that the judiciary was the least dangerous branch of government. Many people would argue that Hamilton was incorrect and that today’s courts wield an enormous amount of power. However, Hamilton believed the courts were the least dangerous branch because they had the power of neither the purse nor the sword. The courts’ power increased with John Marshall’s establishment of judicial review. All presidents are concerned with the legacy they leave once out of the office and a major influence on this legacy is the Supreme Court justices they appoint. For this reason, politics plays an immense role in the nomination process. Consider the nomination of Merrick Garland by Barack Obama in 2016 to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia (an icon of conservative ideology). However, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected later that year. According to McConnell, “the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.” Supreme Court picks have often been controversial but there was no precedence to ignore the nominee entirely. Scalia’s seat would later be filled by Neil Gorsuch (nominated by President Donald Trump). Based on this information (and your own outside research), analyze the process by which U.S. judges are nominated and confirmed. Does this seem like a fair process? What extent does it have on the political lean of the Court, and therefore, on United States law (specifically civil rights and civil liberties)? Cite specific examples. Consider the concepts of judicial activism and judicial restraint in your response.
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