The U.S. Senate has the constitutional right to hold no hearings and no votes on President Obama’s eventual nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.
While I’ve written extensively on both the historical precedent and the constitutional analysis confirming this, you don’t have to go back to the Constitutional Convention or even 1880 to confirm this.
Some of the best arguments defending the Senate’s right to act or not act on judicial nominees have been made by leading liberals serving in the Senate – Vice President Biden, Senate Minority Leader Harry Reid, Senate Democratic Conference Vice Chairman Chuck Schumer, and Senate Judiciary Committee Ranking Member Patrick Leahy.
When these men were U.S. Senators and faced judicial nominations from the opposing party’s President, they articulately laid out the compelling constitutional basis for the Senate to hold no hearings and no votes as part of its broad “advice and consent” power.
When Vice President Biden – now the President of the Senate – was U.S. Senator Biden, he served as the Chair of the Senate Judiciary Committee. As Chairman, he led the efforts in 1987 to prevent the confirmation of President Reagan’s Supreme Court nominee Judge Robert Bork, stating, “The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary. The Senate has an undisputed right to consider judicial philosophy.”
Nearly two decades later, he once again supported the use of the filibuster on Supreme Court nominees when discussing the nomination of Justice Alito.
But perhaps his strongest defense of the Senate’s “advice and consent” role comes from 1992 in the midst of the presidential election.
Senator Biden pleads that the best thing for the country, the Constitution, the Supreme Court, Congress, and the Presidency is for the current President to wait and allow the next President to fill any Supreme Court vacancy:
As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not--and not--name a nominee until after the November election is completed.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. …
I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the Justices four to four are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.
In the end, this may be the only course of action that historical practice and practical realism can sustain.
Senate Minority Leader Harry Reid notoriously filibustered and blocked numerous judicial nominees when President George W. Bush was in office. Majority Leader McConnell and Senate Judiciary Committee Chairman Grassley rightfully quoted Senator Reid last week in their op-ed in the Washington Post:
“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote. … The Senate is not a rubber stamp for the executive branch.”
Senate Democrat Conference Vice Chairman Chuck Schumer argued in 2007 that, from then to the election of President Bush’s successor, the Senate should not fill any SCOTUS vacancies “EXCEPT in extraordinary circumstances.” He continued, "We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito."
As for Senate Judiciary Committee Ranking Member Patrick Leahy, the Washington Post has highlighted his consistent statements supporting the precedent for the Senate to not confirm any judicial nominees during a presidential election:
November 2004: "Whether [Republicans] acknowledge it as the Thurmond Rule or something else, it is a well-established practice that in presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement."
July 2004: "At this point in a presidential election year, in accordance with the Thurmond Rule, only consensus nominees being taken up with the approval of the majority and minority leaders and the chairman and ranking members of the Judiciary Committee should be considered."
The Congressional Research Service has pointed out that the U.S. Senate has confirmed 124 Supreme Court nominations out of 160 received. 22.5% of total nominations have failed to be confirmed by the U.S. Senate. 25 of the 36 failed nominations did not receive an up-or-down vote on the floor of the U.S. Senate.
This is why the Senate Judiciary Committee is fully within its power to hold no hearings and no votes on any potential nominees. Because this is not about any specific nominee. As then-Senator Biden so eloquently stated in 1992, this is about what’s best for our Constitution and our country: “It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
This is what the Senate Judiciary Committee just did, announcing that it would not hold any hearings on an eventual Obama nominee to the Supreme Court this year. It’s not only within the committee’s power to do. It’s the right thing to do.
And it’s a major victory in our fight to ensure that the American people have a voice in selecting our next Supreme Court justice. But even with this victory, our fight must go on.
We will continue vigorous fighting to ensure the Senate does the right thing to give the American people that voice.
This is a fight we can win. We've engaged in dozens of nomination fights for decades. And now we’re preparing for one of the most important battles ever. We're mobilizing every resource of the ACLJ to ensure the next Supreme Court justice defends the Constitution, not the President's partisan priorities.
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