February 15, 2016
THE SENATE’S ROLE ISN’T “ADVICE AND RUBBER STAMP”: The Appointment Clause of Article I, section 2 of the Constitution makes it clear that while the President has the power to nominate Supreme Court Justices, no appointment can take place without the “Advice and Consent of the Senate.”
Obama has made it clear, in his statement after the announcement of Justice Scalia’s death and through press spokesman Eric Schultz, that he will send a nominee’s name to the Senate and that he will not do so during the current 10-day President’s Day recess. But the Senate doesn’t have to act on the nomination at all. . . .
The Constitution clearly gives the president the duty of appointing a justice and it clearly gives the Senate the prerogative to confirm or deny confirmation to that nominee. . . .
Newspapers like the Washington Post will be full of articles about the Obama nominee’s great skills and attractive background. For an example of what’s coming, consider this article on one possible nominee, who if confirmed and if he lives as long as Scalia would serve until 2052. The writer relishes the prospect of Republicans opposing an outwardly attractive Mexican-American nominee, though to me it brings back the spectacle of the Democrats in the first term blocking the appeals court nomination of Miguel Estrada for fear that he would become an attractive Supreme Court nominee. Estrada’s nomination was not reported to the floor when Democrats were in the majority and when Republicans gained the majority it was filibustered — the first filibuster of an appeals court nominee in history. So much for precedent. . . .
Republicans could argue, as their presidential candidates did in Saturday’s debate, that the president should not get to nominate a justice in his last year in office. That’s a principled stand, and one for which there is ample precedent. . . .
The last three times a justice was nominated and confirmed in a presidential year were in 1956, 1940 and 1932. In 1956 and 1932, Republican presidents named a Democratic nominee who served on their state’s highest courts: Dwight Eisenhower chose William Brennan (whose selection he later called one of his biggest mistakes) and Herbert Hoover chose Benjamin Cardozo. In 1940 a Democratic president named a Democratic nominee, Attorney General Frank Murphy, who was nominated on January 4 and confirmed by a Democratic-majority Senate 12 days later. If you want to take this as a precedent for consideration and confirmation of a nominee in an election year, note that it is 76 years old.
UPDATE: Adam J. White, on the basis of impressive historical research, makes the point in the Weekly Standard blog that the Senate has no constitutional duty to vote on Supreme Court appointments. In fact, the Senate has confirmed only 124 of 160 presidential Supreme Court nominations, and of the 36 unsuccessful nominees fully 25 received no up-or-down vote. The Senate would be well advised, in my view, to treat an Obama nominee the same way.
The last three times when a terminal-year President nominated and obtained confirmation of a Supreme Court nominee all involved Democrats being confirmed–two involving Republican Presidents (Hoover and Eisenhower) who named to the Court Democrats, who were then confirmed by a Senate that was very closely divided (47-48 Democrat/Republican in 1932; 48-47 Democrat/Republican in 1956); the other involving a Democratic President (FDR) who named a Democrat, who in turn was confirmed by Democrat-controlled Senate (69-23 Democrat/Republican in 1940).
So basically this recent history of terminal-year presidential Supreme Court appointments has been a one-way street in favor of Democrats only.