In yesterday’s Journal Sentinel, Marquette Law Professor Ed Fallone suggests that the Senate would be somehow abdicating its constitutional responsibility should it fail to consider President Obama’s nomination of Merrick Garland to the United States Supreme Court. He’s wrong.
Professor Fallone begins by stating the obvious – and, in this context – irrelevant. The President has the sole authority to nominate a justice. No one disputes that. No one argues that the Senate has any role in the “pre-nomination” process or that it can place conditions or restrictions on who the President may nominate. The Senate has not done that. An announcement by Senate leadership that it will only consent to certain kinds of candidates or even that it will consent to no candidate places no limitation on the President’s ability to nominate who he wishes just as an announcement that a particular budget will be dead on arrival does not limit the President’s ability to propose it. If the Senate has – or is contemplating – doing something inconsistent with its constitutional duty, it must be something that will be done – or not done – after Judge Garland’s nomination.
But there is no duty to vote upon – or even to consider – a judicial nominee. The President’s authority to appoint someone to the federal bench is contingent on the Senate’s advice and consent – something that it is constitutionally free to withhold for any reason it deems appropriate. In fact, the very authority cited by Professor Fallone makes that clear.
In an attempt to accuse conservatives of hypocrisy, he cites to a 2005 article by a conservative law professor John McGinnis posted on the website of the Heritage Foundation, a group that Professor Fallone accuses of seeking to “obstruct” Judge Garland’s nomination. (Full disclosure: I am a member of Heritage’s Legal Strategy Network.)
Professor McGinnis did indeed say that the Senate may not restrict the President’s selection of a nominee.
But he said something else as well:
The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential "point of view" were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.
In other words, while the President can ask the Senate to consent to the nomination of anyone he chooses, the Senate can say no for whatever reason it wants, including the desire to have a vacancy filled by the next President. Nothing in the constitutional text requires any particular process for withholding consent. There is no mandate to hold hearings or to have an up or down vote. Indeed, many lawyers have been nominated for the federal bench only to see their nominations fail for want of a hearing or vote. The same is true for nominees to other branches who the Senate either opposes personally, or opposes for other, often unstated reasons.
Professor Fallone makes one other obvious point. “Hypocrisy,” he writes,” is nothing new in politics.” It sure isn’t. In a 2005 speech to the left-leaning think tank Center for American Progress, former Senate Majority Leader Robert Byrd (D- W. Va.) said that “[t]he Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.” (The Center for American Progress today finds itself outraged by such an idea.) In lengthy remarks during the final year of George H.W. Bush’s nomination, now Vice President Joe Biden said that the Senate was well within its rights to refuse to consider a nominee that was not to its liking “once the political season is underway.”
Indeed, the Alliance for Justice, a left-wing lawyers group sponsoring the statement signed by Professor Fallone urging consideration of Garland, is famous for “obstructing” the nominees of Republican Presidents, including by filibuster.
What we have here is not a failure to abide by commonly held or binding legal principles. It is a failure to agree. Sometimes this results in a stand-off that only the next election can break.