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Meg Penrose on Originalism and Filling the Supreme Court Vacancy
Michael Ramsey

In the Austin American-Statesman, Meg Penrose (Texas A&M): The death of originalism.  It begins:

Originalism has died. Not because the seemingly irreplaceable Supreme Court Justice Antonin Scalia has passed away. No. originalism died when Sen. Mitch McConnell and members of the Senate Judicial Committee proclaimed our constitution permits the Senate “to provide or withhold consent” on any judicial nomination. This is not originalism. This is the death of originalism.

Originalists believe constitutional text matters. The written word, as intended by the framers, always controls — not just when convenient. Originalists do not engraft their desired meaning onto the Constitution. For any senator to suggest the phrase “withhold consent” or “lame-duck president” appears in our Constitution is an affront to originalism.

And from the core of the argument:

The framers built an extraordinary, delicately balanced government of three co-equal branches. Two of those branches have a clear textual role to play in replacing a Supreme Court justice. The roles are explicitly stated: the president shall nominate a replacement; the Senate shall provide its advice and consent. The brilliance in this cooperative approach is that it provides a built-in check and balance against an overreaching president. The Senate has the constitutional authority to deny each and every nominee after fulfilling its enumerated role to advise and consent. But, the framers did not intend – at least if you rely on the constitutional text – to permit the Senate to indefinitely delay or withhold all consideration of a president’s nominee. This approach defies the framers’ written command. This approach upsets the delicate balance between three co-equal branches of government. It undermines the very check and balance Article II constructed. It may be convenient, but it is far afield from originalism.

For the Senate to withhold all consideration is to rewrite constitution text and violate the principles of originalism. Scalia worried about governmental actors changing constitutional principles by ukase. Yet, here we are. Senate majority leaders now seek to change the appointment process by ukase. Such ukase — regardless of which party urges it — strikes at the heart of originalism.

(Via Ed Whelan at NRO, who comments harshly.)

I find Professor Penrose's article unpersuasive for multiple reasons.

(1) It's another example of a non-originalist (I presume) telling originalists what they should believe.  (At least, a look at Professor Penrose's publications here does not suggest much originalist-oriented or historical scholarship.)

(2) It's not originalist.  Apart from a few general references to the framers, the argument is just about the text.  Professor Penrose provides no concrete historical evidence at all.  She does not seem to be aware (or at least does not mention) Adam White's outstanding originalist article on the issue, written during the debate over the Bush judicial nominations, which surveys the historical evidence and concludes that the Senate has no constitutional obligation to vote on nominees.

(3)  In any event, it's wrong on the text.  To begin, despite what she seems to say in her opening, of course the Senate has the power “'to provide or withhold consent' on any judicial nomination."  I assume she agrees that the Senate can refuse its consent.

So her objection must be to the manner in which consent is to be withheld.  She seems to think that the Senate's constitutional power of advice and consent requires it to provide an individualized hearing and a floor vote on a nominee.  The text does not say this; the procedures for advice and consent are not specified.  In the current situation, the Senate -- through the Majority Leader and the Chair of the Judiciary Committee -- has advised the President that an appointment should not be made before a new President is selected.  Of course, the President is not constitutionally obliged to take that advice.  But if he proceeds with a nomination, the Senate then may say (again through its Majority Leader and Judiciary Committee Chair) that it will decline its consent by not considering it, consistent with the advice given earlier.  As a result, it seems clear that advice has been given, and consent withheld, all as envisioned by the Constitution.

Thus Professor Penrose must be objecting to the Senate expressing its advice and (non)consent through the Majority Leader and Chair of the Judiciary Committee rather than through a floor vote.  But under the Constitution, the Senate "determine[s] the Rules of its Proceedings" (Art. I, Sec. 5).  If it chooses a route other than a floor vote, that is its constitutional prerogative.  Similarly, she apparently thinks there is a problem because the Senate says it will not give individualized consideration of a nominee (what she calls "withholding consideration").  But if the Senate has (through its own procedures) determined that it categorically will not consent to a nominee until the next President takes office, there is no need for an individualized consideration.  The Senate may refuse to consent to a category of nominees as much as it may refuse consent to an individual nominee.  It is not "withholding consideration"; it is considering (and rejecting) the proposition that a nominee should be confirmed before the election.

In sum, the Senate's role is to provide advice and to decide whether to give or withhold consent.  Through its appropriate officers, it has advised the President to leave the vacancy open until after the election, and has stated that if the President does not follow that advice, it will withhold its consent by not voting on any nomination.  Thus it has fulfilled its constitutional duty.  The only possible objection is that the Senate has made these determinations through its Majority Leader and Judiciary Committee Chair rather than a floor vote.  But the Constitution does not specify how advice and consent must be provided, and the Senate is constitutionally empowered to choose its own procedures.