Justice Ruth Bader Ginsburg again feels compelled to urge the Senate to vote on President Obama’s nomination of Merrick Garland to the seat held by the late justice Antonin Scalia. At an event this week for incoming law students at Georgetown University, Ginsburg said the Senate should vote on Garland. She added that the Senate can’t be forced to vote. And indeed it can’t.
Under the Constitution’s appointments clause, a president makes a nomination but can’t appoint the nominee unless the Senate provides its consent. The clause does not say how the Senate is to exercise its consent power but leaves that to the upper chamber.
In filling the vacancy, Republican senators have said they would not confirm any nominee until after Election Day. Thus, the next president would select Scalia’s successor. The senators have offered various reasons for their position, chief among them that a confirmation process should not take place during a highly polarized presidential election year. Whatever one might think of the Senate’s refusal to process the Garland nomination, no court has jurisdiction over these matters. But voters do. And so, as they choose the new president and the new Senate, they may take into account the Senate’s position on Garland as well as the kind of justices, having what kind of judicial philosophy, the next president would likely select.
“I do think cooler heads will prevail,” said Ginsburg, the only justice to have commented on the Garland nomination or the presidential race (she can’t stand Trump, to put it mildly). “I hope sooner rather than later,” she added. So that a vote on Garland can be held before election day.
“The president,” she continued, “is elected for four years not three years, so the power he has in year three continues into year four.” Yes, the president is elected for four years and not three, and the power he has in the third year does continue throughout the fourth.
But to the extent Ginsburg is trying to say that by processing the Garland nomination the Senate is denying the president his power to nominate, she is wrong. The president may exercise that power however he wishes, and Obama has done so with the Garland pick. There’s been no diminution of presidential power, but there is a clash of powers between the president and the Senate, which the people may settle on Election Day.
As one must hope the Georgetown professors duly teach.
