By Gabriel Maliha
Gabriel Maliha is a rising senior at the University of Pennsylvania studying criminology.
The vacancy left on the Supreme Court by the passing of Justice Antonin Scalia touched off a fierce battle between President Obama and the Republican-controlled Senate. The President asserted that he has the responsibility, and indeed the obligation, to nominate a replacement. The Senate leadership has maintained that the chamber is under no obligation to hold hearings or vote on the President’s nominee. A close reading of the Constitution reveals that both the President and the Senate leadership have support for their assertions and the two positions are not incompatible.
Article II, Section II, Clause II of the United States Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.”  The clause makes abundantly clear that the powers to nominate and to appoint are separate. The former is vested exclusively with the president, while the latter is conditional on senate approval (at least for the specified high offices.) Further, the use of “shall” in the eighteenth century conveyed a sense of obligation or command on the president’s part to nominate. On the other hand, the text is silent on the urgency or obligation of the senate to provide its advice and consent. More than two centuries of constitutional practice seem to confirm a plenary power for the president to nominate and a “complete and final discretion” for the senate to confirm. 
But how did the framers understand the appointment clause? Here the record is mixed as well. The clause is designed to deliver accountability of one person nominating while checking potential abuse of the appointment process with “advice and consent.” In the debate surrounding ratification, Alexander Hamilton suggested that a nominee should be rejected only for “special and strong reasons.” However, an attempt by James Madison to write the appointment clause to provide the senate with veto power over appointments which would otherwise be automatically confirmed within a certain period of time absent senate action was voted down in favor of current language. That would suggest that the framers wanted the president to specifically advocate for his nominees before the senate. 
What does precedent suggest? The Court’s lifetime appointments provide a very limited universe of precedents. There have been 161 nominations (including Merrick Garland, the current nominee) to the court. The senate confirmed 124 (including seven who declined the appointment.) 12 were rejected by the senate, 12 withdrew, three were postponed and 10 nominees received no action whatsoever in the senate. So in essence, of the 37 failed nominations, 26 (including Garland) were not voted on at all.  
Is there constitutional support for the Senate not providing an up or down vote on a nominee or as in this case denying even a hearing? Article I, Section 5 of the constitution provides that “each house may determine the rules of its proceedings.” So, in fact, the relevant leadership in the senate may use their prerogatives under the chamber’s rules to determine referral to committee, scheduling of hearings and of votes.
Is there senate precedent on timely considerations under the advice-and-consent clause? President John Quincy Adams appointed John Crittenden to replace deceased justice Robert Trimble in the midst of his 1828 heated re-election campaign against Andrew Jackson. Jackson’s supporters in the senate refused to consider the appointment. Adam’s supporters in the senate introduced the following amendment: “That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that is not now expedient or proper to alter it.” The amendment was rejected and an alternate amendment was adopted “that it is not expedient to act upon the nomination of John I. Crittenden.” Jackson won the election and made the appointment. Crittenden was never considered. 
The conflict between the president and the senate is political and not constitutional. Both are on firm legal ground. But acting legally is not the same as acting with legitimate political purpose. The latter concept may incorporate notions of fair dealing, ethical intent and moral conduct. Initial polling seems to indicate that a majority of the public favors at least conducting hearings for the nominee. If the electorate still feels that way at election time, then the conflict will be resolved at the ballot box just as the framers intended and anticipated.
In a recent op-ed in the Wall Street Journal, Cass Sunstein, a Harvard Law professor, makes the case that a divided court without an ideological majority has forced the eight justices to seek consensus, judicial restraint and “minimalism” in their rulings. But more importantly, he predicts that the Roberts Court will continue to do so even after the ninth justice is confirmed.  If indeed that is the case, then perhaps this conflict produced an unintended consequence that many would consider a desirable outcome. A Supreme Court that strives towards consensus building is less likely to produce controversial rulings and perhaps less likely to engender contentious confirmation fights.
White, David. “Let ambition counteract ambition.” The Weekly Standard. (Feb. 14, 2016, 6:37PM).
 McGinnis, John. “Advice and Consent: What the Constitution Says.” The Heritage Foundation (July 19, 2015). http://www.heritage.org/research/reports/2005/07/advice-and-consent-what-the-constitution-says.
 White, Adam J., Toward the Framers' Understanding of Advice and Consent: An Historical and Textual Inquiry. Harvard Journal of Law and Public Policy, Vol. 29, No. 1, Fall 2005. Available at SSRN: http://ssrn.com/abstract=813464
 Carrol, Lauren & Emery, Eugene Jr. “7 questions about Obama’s Supreme Court nomination.” PolitiFact (March 16, 2016).
 White, David. “Let ambition counteract ambition.” The Weekly Standard. (Feb. 14, 2016, 6:37PM).
 Kessler, Glenn. “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?” The Washington Post (March 16, 2016). http://www.washingtonpost.com/news/fact-checker/wp/2016/03/16/does-the-senate-have-a-constitutional-responsibility-to-consider-a-supreme-court-nomination.
 Sunstein, Cass. “At Last, A Supreme Court That Does Less.” The Wall Street Journal (June 3, 2016). http://www.wsj.com/articles/the-supreme-courts-new-minimalism-1464967425.
Photo Credit: Flickr User Ryan McGinnis
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