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The Constitution is Clear: The Senate’s “Advice and Consent” is Not a Rubber Stamp of the President


Jay Sekulow

February 20, 2016

6 min read

Supreme Court



The Constitution is clear about the roles of both the President and the U.S. Senate in the nomination and confirmation of Supreme Court justices.

Article II, Section 2, Clause 2 of the U.S. Constitution governs the nomination and appointment of Supreme Court justices: “[The President,] by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . . .”

The President submits his nomination to the U.S. Senate. Senate procedure dictates the next steps. But normally, the nomination goes to the Senate Judiciary Committee, which determines whether to hold hearings on the nomination or not. After hearings are held, the Senate Judiciary Committee may then decide whether to bring the nomination up for a vote in the Committee or not. If the vote passes out of the Committee, the Senate Majority Leader then may decide whether to bring the nomination to the floor of the Senate or not. At that point, there could be debate on the floor of the U.S. Senate and a possible cloture vote to determine whether to close debate on the nomination and bring up a confirmation vote on the Senate floor. If the nomination receives a cloture vote of at least 60 votes, then the nomination can receive a final up-or-down vote. If the nomination does not reach the 60-vote threshold to close debate this is known as a filibuster.

Once cloture is reached, then the nomination is given a final vote. If a majority of the Senate approves of the nominee, then the nominee is confirmed and their appointment to the Supreme Court is complete. If a majority of the Senate does not approve, then the nominee is rejected.

This entire process makes up the “advice and consent” duty of the U.S. Senate. It is within the discretion of the Senate as to what action, if any, to take for a given nomination.

As I told Fox News earlier this week, "While President Obama remains free to appoint a conservative committed to upholding the Constitution as [Justice Scalia’s] replacement, he has given us no reason to believe he would. So the American people should get to decide."

As Adam White has written extensively in The Weekly Standard and a Harvard Journal for the Study of Law & Public Policy article, this does not mean the Senate must act in any way on a nomination. “But nowhere does the Constitution say that the Senate is required to act on the president's nominations. The Framers certainly didn't understand the Senate to bear such an obligation. And the Framers who drafted that document certainly didn't say that the Senate bore such an obligation.”

Having studied the discourse of our Founding Fathers at the Constitutional Convention and the debates surrounding the Constitution’s ratification, White “found no indication of any expectation that the Senate would be required [to] vote on a President's nominees.”

He writes:

The Framers expressly based the Constitution's "advice and consent" model on the approach used in Massachusetts, under the State's Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the "Privy Council," the body that provided constitutional advice and consent.

But the best evidence of the Senate's power not to vote on nominations is found in the Framers' rejection of an alternative approach to appointments. As an alternative to the "advice and consent" model, James Madison proposed a discretionary Senate veto. Under that plan, a president's nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the "advice and consent" model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

The Congressional Research Service provides further statistics on the Senate confirmation process:

From the appointment of the first Justices in 1789 through its consideration of nominee Elena Kagan in 2010, the Senate has confirmed 124 Supreme Court nominations out of 160 received. Of the 36 nominations which were not confirmed, 11 were rejected outright in roll-call votes by the Senate, while nearly all of the rest, in the face of substantial committee or Senate opposition to the nominee or the President, were withdrawn by the President, or were postponed, tabled, or never voted on by the Senate.

This means that 25 of the 36 failed nominations did not receive an up-or-down vote on the floor of the U.S. Senate.

This also means that 22.5% of Supreme Court nominations have failed to be confirmed in the U.S. Senate.

And although many high-ranking Democrats including President Obama are calling for confirmation now, they have a proven record of opposing Supreme Court nominations when put forward by Republican Presidents over the past several decades.

As Senate Majority Leader McConnell and Senate Judiciary Committee Chairman Grassley point out in an op-ed in The Washington Post today, Minority Leader Harry Reid sang a very different tune when a Republican was in the White House.

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.

This is why our fight is so important. This is why the ACLJ is mobilizing all of our resources. As The New York Times reported earlier this week

Moments after Justice Scalia’s death became public, the American Center for Law and Justice, a conservative organization, organized a team of five lawyers to scour the backgrounds of potential nominees, and another team to research the Senate’s procedural rules. The group has so far sent out a million emails to its members and is preparing videos to post on its Facebook page early next week.

As I told The New York Times, “The stakes are as high as anything we have dealt with in Washington in a decade . . . . This is not even the beginning of what this fight will be. It’s full-media, full-legal research, full-government affairs, full-throttle on this.”

We need your support. President Obama’s allies claim they have collected more than 500,000 signatures in support of a nomination and confirmation.

Join our fight and sign our petition today.

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