Republicans have no constitutional duty to vote on Supreme Court nominees

The procedural debate over filling the Supreme Court vacancy resulting from Justice Scalia’s death has become tiresome already. Both sides are dressing up their arguments in constitutional clothing, to which the Democrats are adding a dose of moralism.

Yet everyone understands that if positions were reversed — if a Republican president wanted to fill a vacancy and the Democrats controlled the Senate — Democrats would be prepared to block any conservative nominee on the theory that the president is a lame duck (see more on this below). Meanwhile, Republicans would be trying to shame Democrats for their obstructionism and the Republican president would be leading this charge, while looking for the nominee whose rejection would provide the GOP with the most political ammo.

Republicans might also be claiming that the Senate has a constitutional obligation to confirm a qualified Supreme Court nominee or even to give such a nominee an up-or-down vote. If so, they would be wrong. The argument is untenable, as Adam White shows.

The Constitution (Article II, Section 2) has this to say:

[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.

Thus, Democrats are right, of course, when they argue that Obama can nominate a Supreme Court Justice in his lame duck year. Arguably, it would be a dereliction of duty for President Obama to let the eleven remaining months of his presidency pass without nominating someone.

But the president can only nominate. The Constitution is clear that to “appoint” he needs the consent of the Senate.

Nothing in the Constitution says the Senate must consent. Nothing says the Senate cannot withhold consent for partisan political reasons. Nothing says the Senate can only deny its consent by holding an up-or-down vote. Nothing says it must act at all on the nomination.

Nor does history aid the Democrats’ attempt to find an obligation to act. White has examined the debates over the framing and ratification of the Constitution. He found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

The Framers expressly based the Constitution’s “advice and consent” model on the approach used in Massachusetts, under the State’s Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the “Privy Council,” the body that provided constitutional advice and consent.

But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

What about Senate practice when it comes to dealing with Supreme Court nominees?

Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

This doesn’t mean that nominees shouldn’t get a vote if the Senate has enough time to deliberate. Arguably, they should.

But Democrats have lost the standing to make this argument as a result of positions they took in the past. White notes that Chuck Schumer, who is leading the Democrats full-court press for a vote on whomever Obama nominates, announced in mid-2007 — with a year and a half left in Bush’s presidency — that he would block any further nominations Bush might make to the Court. He added that the failure of his effort to filibuster the Alito nomination, barely a year into Bush’s second term, one of his “greatest failings and regrets.” Then-Senator Obama was right there with Schumer.

Thus, the Republicans have neither a constitutional nor a moral obligation to act on Obama’s nominee. Political prudence might dictate, as John believes it does, that the Senate take some action. Hearings might help Republicans make the case to the public that the nominee is too radical, though recent history suggests that nominees know how to avoid that trap.

But whatever Republicans decide to do, their decision should be based purely on political calculation. And in no case should they confirm another Obama Supreme Court nominee.

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