Home » Advice & Consent 03: Is everybody acting Constitutionally around here?

Advice & Consent 03: Is everybody acting Constitutionally around here?

This Week

  • “Dan’s Uncle Joe” (not his actual uncle) addresses Georgetown Law School… Syracuse makes the Final Four. Coincidence? (#sportsball reference to a fierce basketball rivalry… pay no mind)
  • Noted liberal Miguel Estrada (former Bush-43 DC Circuit nominee) says National Rifle Association’s case against Garland as “thin to non-existent.”
  • One of those meetings this week? GOP Senator Mark Kirk, facing a tough election in IL this fall.
  • 4-4 tie means pro-labor union outcome. And perhaps an odd outcome to the Sisters of the Poor case. Still digging that extended vacancy Senators?
  • Senate Democrats Call For Vote On Obama’s Supreme Court Nominee By Memorial Day (based on average lengths of nominee confirmation periods since 1916)
    • Judiciary hearing starting 4/27
    • Committee vote by 5/12
    • Floor vote by 5/25

The Chatter

Politico: Conservatives hammer GOP senator over Supreme Court dissent

Election Law Blog: Why President Obama Has the Constitutional Power to Appoint—and Not Just Nominate—a Replacement for Justice Scalia

NBC News: Quarter of Republican Senators Now Back Meetings for Merrick Garland

NYT: On Business Issues, Republicans Might Want a Justice Garland

ThinkProgress: The NRA’s Case Against Merrick Garland Just Got Super Awkward

Buzzfeed: Senate Democrats Call for Vote on Obama’s Supreme Court Nominee By Memorial Day


Today’s Topic: Is everyone acting Constitutionally around here?



[The President] shall nominate, and by and with the advice and consent of the Senate… judges of the Supreme Court…

POTUS “shall” make a nomination when there’s a vacancy. Check.

What specifically does Advice and Consent mean? Is the Senate acting in bounds? The Constitution is a tad vague on this point:



Each House may determine the rules of its proceedings…

And that’s the rub.


Tim: everyone’s been Constitutionally fine up til now, but the Senate is taking the obstructionist role on this. Sadly there’s nothing but the political process to hold them accountable, and that’s not fast.

Adam: Most Americans who care about this stuff laugh at British people who say they have an unwritten constitution based on set of norms. Some things aren’t done. At times like this, we see just how much of our own Constitution is unwritten.

But because our Constitution is written, those norms are subject to change. E.g., when Andrew Jackson decided veto could be used for policy disagreement, when Senate decided 50 years ago never to confirm a judge without a hearing, when FDR accidentally set the permanent number of justices at 9.

Lena: many Senators aren’t acting according to the Constitution – text or spirit – by saying that doing nothing is a version of “advice and consent.” I believe there’s an affirmative duty, certainly according to custom and tradition, Senate’s own rules.

Sure, not all scholars agree there’s an affirmative duty for the Senators to do this, but for the leadership – who controls schedules – to shut down the entire process so that not a single Senator can really act is unprecedented. Unwise.

At least – even if not unconstitutional – this harms our constitutional representative democracy. Sets a really dangerous precedent. If can just hold out on SCOTUS, other cabinet positions for duration of presidency?

No remedy for this. Just the public holding them accountable.

Precedent for rejection

“The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century’s first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.”  


“Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee’s judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.”




I think maybe there is the thinnest reed of constitutional responsibility in the Advice & Consent Clause for the Senate to do more than just say “WE WILL DO NOTHING,” but there’s not much about the modern confirmation process that is governed by the Constitution or constitutional law.  There are a lot of democratic and historical norms that the Republican Senate leadership is flouting, and that does have implications that could lead to a constitutional crisis, but I’m not comfortable saying that this incredibly destructive obstruction is unconstitutional.

Senate Judiciary Committee Democrats

NOTE: from Chris Geidner at Buzzfeed, quoting Judiciary Cmte. Dems’ letter to Republican leaders, and including a really nice chart: “Since Committee hearings began in 1916, every pending Supreme Court nominee has received a hearing, except 9 nominees who were all confirmed within 11 days,” Senate Democrats on the Judiciary Committee wrote on Monday.  According to the average time it’s taken to confirm nominees in the past, the Democrats write that hearings for Garland should begin April 27, with a vote of the Judiciary Committee on May 12.


Mic Drop

Tim: Justice Kennedy was nominated shortly before the beginning of President Reagan’s last term. There was a relatively wide open election where both parties had a shot at the White House, and the vacancy was sudden and unexpected.  Honest question: when between November 30th of the penultimate year of a presidency – the date Kennedy was nominated by President Reagan – and March 16th – the date Judge Garland was nominated by President Obama, do “the voters” in the upcoming election get a say in the selection of the nominee, in the parlance of the current Republican Senate leadership?

Dan: As promised, I’m going back to the deep and nourishing well of Dahlia Lithwick’s Facebook comments.  This is a brief one, but it’s so simple and gets extra points for a gourmet food reference.  Writing about today’s request for additional briefing in Zubick v. Burwell, which commentators uniformly believe is a sign that the Court is looking for a way out of a 4-4 split, Scott Lemieux (political scientist & Contributing Writer at The Week Magazine), writes:

“Make that prosciutto THINNER!” — Kennedy, J. (concurring)Bonus points for the reference to cured meats.  It’ll get me every time.

Adam:  The standard model on what levers Senate has to force a vote (e.g., http://www.forbes.com/sites/charlestiefer/2016/03/16/garlands-supreme-court-nomination-wont-be-so-easily-stopped-in-senate/#669c37e4338a) is nonsense. Dems won’t/can’t shut down the government over Garland. But along with grassroots pressure, there are parliamentary tricks they can use, although the time for using one of those tricks, objecting to referral to the Judiciary Committee under Rule XXXI, has already come and gone. http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI.

Take a look at Rule XVII (http://www.rules.senate.gov/public/index.cfm?p=RuleXVII), Rule XXII (http://www.rules.senate.gov/public/index.cfm?p=RuleXXII) and the tradition of leader remarks to begin the day, in particular.

Lena:  I don’t often want to applaud people for doing the bare minimum but there are some folks I want to thank. Though, as Rep. Tammi Duckworth notes, doing your job doesn’t get you extra credit.