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02/16/2016

Adam White on the Senate's Duty to Vote on Nominees
Michael Ramsey

At the Weekly Standard, Adam J. White: The Constitution Does Not Require the Senate to Vote on a Nomination.  It begins:

Senator Schumer appeared Sunday on ABC's This Week and responded to suggestions that the Senate might not confirm the lame-duck President's nomination to replace the late Justice Scalia: "show me the clause [in the Constitution] that says [the] president's only president for three years."

True, Presidents serve four-year terms. But here's a question for Senator Schumer: Can you show me the clause that says the Senate must vote on, let alone confirm, a President's nominee?

I'll save him the effort: There is no such clause in the Constitution.

And in conclusion:

 Of course, Senator Schumer knows as well as anyone that the Senate is not constitutionally obligated to give judicial nominations an up-or-down vote. From the very outset of George W. Bush's presidency, Schumer was ready to block a vote on any of his Supreme Court nominations. In fact, Schumer announced in mid-2007—with a year and a half left in Bush's presidency—that he would block any further nominations Bush might make to the Court. (He added that the failure of his effort to filibuster the Alito nomination, barely a year into Bush's second term, one of his "greatest failings and regrets.")

President Obama once shared Schumer's fondness for filibustering Supreme Court nominations. But now he, like Schumer, sees things quite differently. "I plan to fulfill my constitutional responsibilities to nominate a successor in due time," he said yesterday, before asserting that the Senate must "fulfill its responsibility to give that person a fair hearing and a timely vote."

Obama's last point repeated almost verbatim the words of his predecessor. "The Senate has a constitutional responsibility to hold an up-or-down vote on every judicial nominee," President Bush said in response to Senator Obama's and Schumer's failed filibuster, a point Bush pressed repeatedly throughout his presidency.

In those days, President Obama was among the loudest critics of presidential power. Today he asserts presidential power more aggressively than his predecessor ever did. The Senate should assert its own power with no less vigor. Let ambition counteract ambition.
Lest this be dismissed as a Republican Party talking point, it's important to note that White wrote a detailed (and outstanding) article on the subject in 2005, when the parties' positions were reversed, and reached the same conclusion.  From Toward the Framers; Understanding of "Advice and Consent": A Historical and Textual Inquiry (Harvard Journal of Law and Public Policy):
 
Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to  act on judicial nominations, the text of the Constitution contains no such obligation. Moreover, the suggestion that the obligation is implicit in the Advice and Consent Clause does not appear to comport with the Framers’ understanding of the term. This analysis is limited, of course, to a consideration of (1) the Framers’ reliance on the example of the Commonwealth of Massachusetts’s advice and consent model; and (2) the structure of their choice of constitutional text, particularly by contrast with James Madison’s failed alternative to advice and consent.  
 
President Bush suggests that the Senate bears a “constitutional obligation” to act on judicial nominations, but it is difficult, if not impossible, to demonstrate that the Framers would have agreed with such an assertion.
 
I agree.  It seems akin to the President's power to recommend legislation (art. II, Sec. 3), which obviously does not require the Congress to vote his recommendations up or down.  Similarly, in modern practice it is routine for the Senate to refuse to consider a treaty that the President has signed and submitted for its consent, and nothing in the Constitution's original meaning indicates any contrary duty; the treaty power is granted in the same sentence of Art. II, Sec. 2 as the appointments power and reads almost in parallel.