Professor Alan Dershowitz wants Senate Democrats to ask Neil Gorsuch during his confirmation hearings about the Senate’s treatment of Judge Merrick Garland, former President Barack Obama’s pick for the Supreme Court vacancy to which Gorsuch has now been nominated. Garland’s nomination was ignored — given no hearings or votes on the Senate floor. Professor Dershowitz thinks Gorsuch would find the question “embarrassing” because ” if Gorsuch were to answer that probing question honestly, he would be challenging the legitimacy of his own nomination.”
It is embarrassing because as a constitutional originalist, he must certainly agree that the Senate has a constitutional obligation either to consent or deny consent to a presidential nominee. There is nothing in the text of the Constitution or in its original purpose that would allow senators simply to refuse to perform their constitutional obligation, in the hope that the next president will be of their party.
The only thing embarrassing here is that this ridiculous argument was ever published.
There is “nothing in the text of the Constitution or in its original purpose” that says senators can refuse to vote on or consider all treaties put before them; or to hold an up-or-down vote on every bill the House passes; or to attempt to override every presidential veto; or to hold pizza parties every Friday in the cloakroom. None of that is evidence of any positive obligation on the Senate’s part to do any of those things.
Were he to answer Dershowitz’s question, Gorsuch would almost certainly say this falls under the political question doctrine — the very reason the current Supreme Court never would have heard a case about the matter. As a sitting federal judge who will remain so whether or not he is confirmed, it’s not Gorsuch’s place to tell senators how to behave themselves in the Senate, any more than it is the senators’ or President Trump’s place to tell him or his fellow judges how to decide cases.
Senators are responsible for their own good or bad behavior when they are doing their jobs on the Senate floor. They face political, not legal, consequences for their decisions on political questions.
The Senate — which under the Constitution has plenary authority to make its own rules — is free to consider or not consider pretty much whatever it wants. The only positive obligations the Constitution appears to place on the Senate is that it (1) choose a president pro tempore and other unspecified officers, (2) meet once a year, (3) keep and publish a journal of its proceedings, including roll call votes, (4) choose a vice president if the Electoral College fails to produce a majority, and (5) stay in session unless the House gives it permission to adjourn.
That’s it.
Nomination hearings for Supreme Court nominees, far from being required in the Constitution, are actually a novelty that wasn’t even introduced until the 20th Century. Previously, justices’ nominations were just brought to the floor (if they were brought to the floor) and voted on. Moreover, the Senate has on 25 different occasions failed to give a president’s Supreme Court nominee an up-or-down vote, for one reason or another. As the Congressional Research Service noted in 2015:
Of the 36 [Supreme Court] nominations which were not confirmed, 11 were rejected outright in roll-call votes by the Senate, while nearly all of the rest, in the face of substantial committee or Senate opposition to the nominee or the President, were withdrawn by the President, or were postponed, tabled, or never voted on by the Senate.
Was it shameful or wrong for the Senate to ignore the Garland nomination, as opposed to voting it down? Maybe — that’s an actual serious question.
Was it unconstitutional? Come on, Professor Dershowitz. Really.
