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01/07/2019

Seth Barrett Tillman on Chief Judge Eckerstrom on the Senate's Duty to Consider Supreme Court Nominees
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted On the Senate’s Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the Supreme Court of the United States: A Response to Chief Judge Peter J. Eckerstrom on SSRN.  Here is the abstract:

In a recent issue of the University of Pennsylvania Journal of Constitutional Law, Chief Judge Peter J. Eckerstrom defended the view that the United States Senate has a constitutional duty, arising under the Appointments Clause, to meaningfully consider presidential nominees to the Supreme Court of the United States. He characterizes such Senate consideration as “obligatory,” “mandatory,” and an “affirmative constitutional duty” as opposed to merely aspirational or directory. Broadly, speaking he puts forward three primary types of arguments or evidence in support of his position: [1] textual; [2] purposive analysis; and, [3] historical materials from ratification. Rather than critique Eckerstrom’s three modalities for understanding the Appointments Clause, I point out what Eckerstrom’s analysis lacks—a developed discussion of extant case law addressing this issue.

Chief Judge Eckertrom's article is here (noted on this blog here).

I agree with Professor Tillman's assessment of the post-ratification precedent, though I think the answer is plain just from the text.  The appointments clause doesn't say that the Senate "shall" do anything -- only that the President "shall" appoint if the Senate consents.