Just Say No

If the Senate succeeds in that effort during what is, of course, a presidential election year, with Barack Obama ineligible (thanks to the Twenty-Second Amendment) to run for a third term, then the next president will nominate Scalia’s successor. And the new president—a Democrat or a Republican—will send the nomination to a Senate controlled by either Republicans or Democrats, depending on the outcomes of the Senate races being held this year. Right now Senate Republicans, numbering 54, are in the majority. Provided they win the presidency, the Democrats will need to pick up four seats to take control of the Senate. As many as nine seats may be competitive.

The country thus seems headed toward an election-year battle over the courts and judicial philosophy. In the early skirmishing, the president has said the Senate would be acting irresponsibly if it blocks his nominee.

The criticism is unfounded. The relevant constitutional text is the appointments clause, found in Article II, Section 2. It says: “The President .  .  . shall nominate, and by and with the advice and consent of the Senate, shall appoint .  .  . judges of the Supreme Court.”

The clause “contemplates three sequential acts” for the appointment of justices, writes law professor John McGinnis. They are: the nomination by the president, the advice and consent of the Senate, and the appointment by the president. Citing the debates among the Framers and subsequent practice, McGinnis says the president has plenary power to nominate: He can choose entirely as he wishes. As for “the advice and consent of the Senate,” it is not, he emphasizes, a pre-nomination but a post-nomination function.

Thus, when President George Washington sent the Senate a message making a nomination, he also requested “your advice on the propriety of appointing” the individual. The Senate confirmed the person and then notified the president of its “advice and consent” to the appointment, which Washington made. The Senate, however, could have rejected the nominee and thus not given its consent to the appointment. And why? Says McGinnis:

President Obama says that he plans to “fulfill my constitutional responsibilities to nominate a successor” and that there is plenty of time “for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.” Obama is right to notice that nominating someone for the Court is his constitutional responsibility. Indeed, he is the only one who has that responsibility. But Obama gets much else wrong. The Senate has no constitutional duty to hold hearings or vote on Obama’s nominee, whether in committee or on the floor. In fact, the Senate may do nothing upon receiving the nomination. And it would not be constitutionally irresponsible to do nothing.

This is not to say that the Senate’s opposition should be categorical—against anyone Obama nominates—though, again, that position is constitutionally allowable, and a good case can be made for it. On the other hand, Senate Republicans may decide to hold hearings and even have a vote in committee. But, to repeat, the Constitution doesn’t require those or any other actions, though of course voters can assess as they wish what the Republicans do or don’t do. And they can assess, too, the substance of the Republican no-consent position.

Republicans have serious disagreements with Obama and the Democrats over judicial philosophy. Note, by the way, that Senator Obama voted against the nominations of John Roberts and Samuel Alito. Republicans also reason that an Obama pick will be to some, probably large, extent to Scalia’s judicial left and would move the Court in that direction. Obama advisers are saying the president is looking for candidates who would use their “own ethics and moral bearings” to render decisions—precisely what Senate Republicans oppose. McConnell also contends, not unreasonably, that voters can factor into their decisions this November the question of who gets to nominate Scalia’s successor.

The political fight already underway is one in which the president has an advantage over the Senate owing to the unitary nature of his office. He alone is vested with the executive power, while the 100 senators share in the legislative powers. His is one voice while theirs are many, and they are elected by states with varying interests and political demographics. They can fragment on an issue, and that is why Obama and the Democrats are now looking for Republican senators who might be persuaded to support hearings and a vote at least in committee.

The emerging White House strategy seems to be to nominate a “qualified” individual without much of a progressive paper trail whom the Republicans will finally agree to vote on and actually confirm. Obama thus would be asking Senate Republicans to trust him on judicial philosophy. But surely Republicans know better than to trust this president on a matter as important as a lifetime appointment to the Supreme Court. Indeed, for that reason, Republicans would be wise not to start up the confirmation process and schedule hearings on Obama’s nominee. Given the ability of any likely nominee to evade and parry questions from senators, the only effect of a hearing would be to give the media an opportunity to publish stories about how “reasonable” the nominee is. At the end of the day, that nominee will be part of a Court majority that will accelerate the liberal judicial project.

So put everything on hold until Election Day, which holds four possible outcomes—a Republican president and a Republican Senate; a Republican president and a Democratic Senate; a Democratic president and a Republican Senate (as we have now); and a Democratic president and a Democratic Senate. It will be up to the voters to decide, and it will be hell for the rule of law, not to mention the Republican party, if the people pick the last of those four.