Tuesday, January 10, 2017

Sunday, January 8, 2017

On The Senate's Unchanged Discretion to Refuse to Consider Nominees



Principled But Wrong

The Republican National Committee is touting Vice President Joe Biden's assertion that Senate Democrats should not obstruct consideration of President-elect Trump's nominee for the U.S. Supreme Court.  In particular, the RNC is highlighting the Vice President's following statement, made during a lengthy interview on PBS.  

“[T]he Constitution says the president shall nominate, not maybe could maybe can.  He shall nominate.  Implicit in the constitution is that the senate will act on its constitutional responsibility, will give its advice and consent.  No one is required to vote for the nominee, but they, in my view, are required to give the nominee a hearing and a vote.  It’s been my policy since I’ve been in the United States Senate.”

This blogger gives the Vice President significant credit for taking the same position with respect to the next President's nominee as he took with respect to President Obama's nominee, Judge Merrick Garland, for the same seat.  The Vice President is to be commended for adhering to principle, even when such adherence could disadvantage the objectives of his own party.  At the same time, this blogger respectively disagrees with the Vice President's assertion that the Constitution somehow requires the Senate to provide any particular form of consideration to a President's nominee for the Supreme Court.  Instead, as previously explained on this blog, the Constitution confers upon the Senate absolute discretion to refuse to consider nominees to the Supreme Court or, for that matter, any other office the appointment to which requires Senate consent.  (See also here). The decision whether and how much to consider a particular nominee is in its nature political and thus a decision for which Senators are accountable to the their constituents, and not the Constitution.  Cf. Marbury v. Madison, 5 U.S. 137 (1803) (distinguishing between the exercise of certain powers, subject to legal constraint, and the exercise of "political" powers, the results of which "are only politically examinable").

None of this is to say that the Senate should decline to consider any particular nominee to the Supreme Court.  However, the Constitution has nothing to do with this question.  The GOP should refrain from republishing unconvincing constitutional arguments, particularly arguments that Republican Senators properly rejected when they declined to consider the nomination of Judge Garland.  The Constitution has not changed since that time.