In addition to the links yesterday on the nomination of D.C. Circuit Chief Judge Merrick Garland to the vacancy on the Supreme Court, here’s Ilya Somin: “No one has better explained the justification for senatorial consideration of judicial philosophy than then-Senator Obama in his 2006 speech justifying his opposition to the nomination of Justice Alito (which Obama had previously tried to prevent from even coming to a vote, by using the filibuster)” While there is good reason for Republicans to table the Garland nomination for now, Somin writes, they should keep in mind that Garland is “preferable to what we might well get in the likely event of a Hillary Clinton victory” — and also that “it would be irresponsible to leave the door open for a Trump nomination.”
And more from the other Ilya, Ilya Shapiro, on the nominee in a CNN roundtable:
From my own perspective, Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.
More (edited): Sorry, email-blast progressives: the Senate has no constitutional duty to vote on a Supreme Court nominee [Michael Ramsey constitutional arguments]. On the other hand, Vikram Amar criticizes the Senate not on the untenable constitutional argument but because, he says, the no-hearings-no-votes stance goes beyond a prudent or appropriate political response to the Democrats’ earlier acts of nomination obstruction.
11 Comments
The Senate’s job is to advise and consent (or not consent). When it does not do so, it is abdicating its duty and is not doing its job. Obama did his job by nominating a candidate. The Senate should do its job of deciding whether to consent. If it cannot be done in the final months of the session, I guess that is one thing. But to not even try is a disgrace.
The bottom line: if the Senate does not want Garland to be on the Supreme Court, it should just get 51 votes together and not consent.
“The Senate’s job is to advise and consent (or not consent).”
Refusing to act on a nomination is not consenting.
Why is this so difficult to understand?
When it does not do so, it is abdicating its duty and is not doing its job.
No, Allan, not so. There is no duty attached to the Senate’s role in examining and/or affirming a Presidential selection. Nowhere is it written in the Constitution that the Senate must act, only that there is a prerogative to do so.
Matt and Bill. According to your theory our Congress could sit around the Capitol and do nothing. Article One does not mandate that Congress do anything. Instead, it gives Congress the authority to do stuff.
I am of the theory that we elect Congress on the presumption that they will exercise their powers, including the Senate’s advice and consent responsibilities and passing necessary laws.
So, yes, the Senate could refuse to do anything on the nomination and not be acting unconstitutionally. But then, it would not be doing its job. It should hold hearings and hold a vote in regular order. If they want to reject the nomination, so be it.
You two sound like my kids when I ask them to empty the trash. They respond “its not my job.” That is ultimately true, as I have not hired my kids, but they have an implicit duty to contribute to the household. The Senate has a implicit duty to make sure the Republic runs.
Allan,
” According to your theory our Congress could sit around the Capitol and do nothing. ”
In my opinion, we would be significantly better off if Congress sat around in the capitol and did nothing. The less they do the better off we are.
There have been several temporary shutdowns of the federal government in recent memory. If it hadn’t been for the fact that the news media kept hyping the shutdowns, less than 10% of the population would have even noticed.
“But then, it would not be doing its job.”
“But then, it would not be doing its job. It should hold hearings and hold a vote in regular order. If they want to reject the nomination”
They have rejected the nomination. Get over it.
In my opinion either we should go back to a part time legislature or they should spend 99% of their time repealing old laws.
I agree that the constitution does not require any particular act. However, a stated refusal to consider–in any way–the specifics of a person nominated by the President is a refusal to perform a duty assigned to the Senate and it is being done for the specific purpose of stopping the President from performing a duty reserved to him. There are many acts which are necessary to the operation of the government as laid out in the Constitution which are not spelled out specifically. Every time basic functions of the various offices are blocked by such intransigence, it leads us closer to collapse of the system as a whole. Both parties should be condemned when they engage in such acts, and discouraged from doing so in the future.
“I agree that the constitution does not require any particular act. However, a stated refusal to consider–in any way–the specifics of a person nominated by the President is a refusal to perform a duty assigned to the Senate”
The only duty on the part of the Senate is to consent or not consent. Silence is not consent. There is no duty that they consider anything in the specific.
The Republicans should treat Judge Merrick Garland with respect, regardless of whether or not they vote him in. Indeed, if they lose Presidency and Senate this November, they should vote him in rather than wait for Hillary and a Democratic Senate come up with someone worse. He would also be an acceptable substitute for one of the four USSC liberals and *possibly* the swing justice.
In the meantime, Republicans should not hide in shame while Democrats spin court vacancies to their advantage. On the contrary, if Republicans don’t want to lose the Senate (and deserve to lose it), they should use the Senate hearing process as a bully pulpit to educate voters on the value of a libertarian conservative court, especially to defend the First Amendment. The hearings could be scheduled in blocks of one or two days every month until ( and maybe after) November.
These hearings would be a good forum for campus horror stories: future leaders being indoctrinated with contempt for free speech and due process. They might even get major left-leaning intellectuals and political players to agree on the record that the Warren Court’s free speech leanings are a tradition that must be continued.
The Senate should also hold hearings on whether to limit USSC terms to twelve years. That would reduce a President’s motivation to appoint a less distinguished middle-aged ideologue over a more distinguished senior judge. USSC judges completing their terms could automatically continue life tenure as Federal Appeals judges, and could be reappointed to another USSC term at any time..
Democratic Senates did allow Republican Presidents to shift the court rightward in 1969-1991. A possible reason is that the most prominent issue dividing liberal judges from conservatives was criminal justice (eg whether to ban the death penalty). The conservative anti-crime agenda was immensely popular, and Congressional Democrats may well have felt that other issues were more worth fighting over.
Over a couple of decades, anti-crime policies would in fact bring a major fall in US crime, something that social-democratic criminologists had assured us was impossible. (Meanwhile, social-democratic Britain overtook us in most categories of serious crime.) Admittedly, not all anti-crime initiatives are of equal value. The War on Some Drugs, for example, has been a cruel and expensive failure.
The President was advised not to nominate anyone because they would not be considered. To me, that fulfilled that part of the role. Any by not holding any hearings, they are expressly Not Consenting. They’ve done their duty!
My concern about the whole process is what judge would consent to be nominated knowing its strictly for political purposes. Even though judges are labeled conservative or liberal, this would leave no doubt he’s Obama’s pawn by going forward with this.
[…] Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier] […]