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An Exchange on the Senate's 'Advice'
Michael Ramsey

Jacob Adler (University of Arkansas -- Philosophy) writes:

I just have been reading your response to the Law Professors' Letter on Supreme Court Appointments.  One comment.  You say that there is plausibly an implied duty to provide advice.  The advice provided so far has been, "Do not nominate anyone."  That surely is advice, but it seems to me that the Senate in that case is advising the President to act unconstitutionally.  The Constitution says that the President shall nominate Justices of the Supreme Court.  How can they reasonably suggest that he should not?

Of course, that by itself doesn't mean that they have to approve his nominee, or vote, or even hold hearings.  But it seems to show little respect for the Constitution.

I responded: 

I agree that the Senate could not advise the President to not make a nomination ever, for the reasons you say.  But here, the advice is just to wait until after the election.  I don't think the President is required to make a nomination in any particular time frame.  He could decide that it would be better to wait, or he might have other more important things to do.  In the past, Presidents have sometimes waited a long time before making a nomination, without being accused of acting unconstitutionally.  So although there is a duty to make a nomination (eventually), there is a lot of discretion in when the nomination is made.  If that's right, then it seems fine for the Senate to advise delaying the nomination a bit.  '

Professor Adler then offered this further comment:

[T]he issue is not just a slight delay.  Rather, Senator McConnell is advising the President to make no nomination at all.  

Obviously, in some cases that's reasonable.  If a Justice were to die or resign on the last day of a President's term, I can't imagine anyone objecting to the President's deferring the appointment to his or her successor.  

But suppose the next President is a Democrat.  Could the Senate advise the new President-elect, "Don't nominate anyone to the Supreme Court for all four years of your term.  And if you're re-elected, don't nominate anyone then, either."  That doesn't seem right, though I can't say I know enough Constitutional law to say if it's really wrong.

My further response: I think I must concede that in Professor Adler's last hypothetical, the Senate is giving unconstitutional advice.  In effect, Senate is saying, we really need just eight Justices.  But it is Congress' power, not the Senate's, to decide the size of the Court.  If there is a vacancy, the President is under a constitutional duty to (eventually) make a nomination ("he shall nominate..."), and the Senate should not advise him (or her) otherwise.  But I think the current situation is different because the Senate is not saying to refrain from nominations indefinitely, for no apparently reason, but rather is saying refrain from nominations for a fairly short defined period (until after the election) for a specific articulated reason (to provide popular input on the type of Justice to be selected).

Thanks to Professor Adler for raising the question, which I think is an important one.

(To be clear, none of this goes to the question whether the Senate may refuse its consent indefinitely due to political disagreement with the President).

RELATED: At the Bishop Madison blog, Alan Meese (William & Mary) has the post On the Senate's Absolute Discretion to Refuse to Consider Nominees.  He writes:

The text plainly empowers the President to nominate, at his discretion, possible Supreme Court justices, ambassadors, public ministers and consuls, and other "officers of the United States." The text also requires, in a straightforward and unambiguous way, Senate "advice and consent" (sometimes called "confirmation"), before the President may appoint such a nominee to the office in question.   The clause does not, however, mention or impose any duty to consent to such nominations or, for that matter, to consider the nomination in any particular way. The Vice President's assertion to the contrary is just that, an assertion, which attempts to transform a requirement of Senate consent before appointment into a constitutional mandate of an (unspecified) amount and type of "consideration" before granting or withholding such consent.  Far from "plainly" requiring such process, the language of Article II, Section 2 simply does not bear this construction, which would assign the phrase "with the advice and consent" two entirely different functions.  As Ed Whelan explains over at Bench Memos. "the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold consent, and it thus leaves the Senate entirely free to exercise that power as it sees fit."  In the same way, it should be added, the Constitution leaves the President entirely free to determine how to go about deciding whom to nominate in the first place.