Thursday, April 7, 2016

Supreme Court Nominations and the Constitution

Must the Senate Consider a President’s Supreme Court Nominee?

No.  The Constitution grants the President the power to nominate Supreme Court Justices, but he can only appoint them if and when the Senate consents -- and there is no obligation requiring the Senate to take action. 

Article II, Section 2, states in relevant part as follows:  “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .”  Notably, the word "shall" applies to the President's nomination and appointment powers, which makes them obligatory, but the term is not used for the Senate's advice and consent power. 


The Framers certainly could have created consequences for a failure by the Senate to act on such nominations, but they did not do so.  An example of what they could have done is found in Article I, Section 7, which addresses how bills become laws.  In order to ensure that the President does not delay this process, the Constitution specifies that "[i]f any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."  In other words, the President has 10 days to act on a bill; if he fails to act within that time frame, the bill automatically becomes a law (unless an adjournment prevents its return).  So if the Framers wanted to ensure that the Senate would always consider nominations, they easily could have added similar language in Article II.   

The Framers left many areas subject to the political process, and this is one of them.  Ultimately, the Senators participating in the current decision not to act on the Garland nomination will be subject to election, and the voters will let them know if they disapprove.  If the Senate chooses not to take action, the only recourse the President has is to make a recess appointment if the Senate is not in session. 

Prior to the Garland nomination, there were 160 Supreme Court nominations.  Of that number, the Senate did not act on 9 nominees, which is over 5.5% of the total nominations.  If you add to that the 12 who were withdrawn, the total is 21, or over 13%.  Thus, when viewed against over 200 years of such nominations, the Senate's current decision, while not common, is certainly not out of step with history.

The Senate website has the details about how each nomination fared.  Of 161 nominations for the Supreme Court, including Chief Justice, 124 were confirmed (7 then declined to serve); 12 were rejected; no action was taken on 9; 12 were withdrawn; and 3 were postponed.  And now 1 is pending.  

Here is a link to the Senate page:  SupremeCourtNominees

9 comments:

  1. I have struggled with understanding Apple's position here. Not that I don't understand the overall privacy issues, but rather why this couldn't be done within the confines of their offices under subpoena or court order akin to a search order? All Apple has done here is incentivize others (with the support of the law enforcement agencies) to do this independently and accomplish exactly what Apple says it does not want. Besides, I refuse to believe that Apple wasn't already able to open the IPhones without writing new code. Views?

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  2. Hey Eric--Something tells me that the Framers neither expected nor intended the Supreme Court to go years, potentially, without a full complement of Justices, subject only to the People's right, via elections that occur with respect to each senator once every 6 years, to fix the situation by booting recalcitrant senators out of office. The Constitution by definition does not cover every legal situation that might arise. Even originalists would at least theoretically look not to the statistics you cite so much as to the intent of the Framers at the time of the adoption of the language at issue. And non-originalists, which have over the years been far more numerous than their originalist colleagues, would use "logic and reason" to address the issue. The President is the picker, the Senate the consenter. Are there no limits to the principle you espouse? Assume a couple decades of a Democratic President, 3-4 deaths of Supreme Court justices (not at all an unlikely death scenario) and a Republican controlled Senate which steadily refuses to confirm judges like Garland. The ONLY remedy for the deadlock is to endure years of a hamstrung Supreme Court, waiting for the People to elect Senators who actually act on Presidential nominations, or a recess appointment?

    I think the Senate is making a significant strategic, if not Constitutional, error, in any event. The right thing to do is take up the nomination, give the nominee hearings, and reject if that still seems appropriate. If a Democrat wins the White House this time--an outcome I see as almost infinitely preferable to a Presidency of either of the two leading Republican candidates, but I digress--then it will be interesting to see, if the Republicans still control the Senate, whether they continue to refuse even to consider Presidential nominations.

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    1. Bruce M., you raise several excellent and thoughtful points. If your parade of horribles appears, it will be because the Republic is facing much bigger problems. On the last day of the Constitutional Convention, Benjamin Franklin is alleged to have stated, in response to a question about what type of government we were to have, "A republic . . . if you can keep it.” Let's hope we can. Thanks for taking the time to weigh in!

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