In the early 1990s when a senator invoked senatorial courtesy to block the governor's nomination of a superior court judge for reappointment, the attorney general sued contending the practice was unconstitutional. The trial judge dismissed the complaint as a nonjusticiable political question. That decision, on direct review, was upheld 3-3 by the Supreme Court. DeVesa v. Dorsey (1993). Ever since, senatorial courtesy has been used for both judicial and executive appointments, and is at least partially to blame for the current logjam in filling Supreme Court vacancies. The Senate refuses to act on its own to eliminate the practice.

The constitutional question involves an apparent conflict between provisions in our state Constitution. On the one hand, gubernatorial appointments require approval ("advice and consent") by the Senate, seemingly by the body as a whole and not by individual senators. This is a classic check and balance. But on the other hand, the two legislative houses are granted the authority to adopt their own rules of procedure. The Senate rules do not provide for senatorial courtesy, but it has been an established practice for over a century, at least for initial judicial appointments. But can legislative practices operate to interfere with executive-branch constitutional provisions themselves?