The Constitution does not require the Senate to give judicial nominees an up or down vote

The U.S. Supreme Court building (Andrew Harrer/Bloomberg)

At a recent press conference, President Obama claimed that the Republican-controlled Senate has a duty to vote on his nominee to replace Supreme Court Justice Antonin Scalia, who passed away on Saturday:

President Barack Obama on Tuesday vowed to pick an indisputably qualified nominee for the Supreme Court and chided Republicans who control the U.S. Senate for threatening to block him from filling the pivotal vacancy.

Obama told senators he has a constitutional duty to nominate a new justice after Saturday's death of conservative Justice Antonin Scalia and reminded them of their constitutional obligation to "do their job" and vote to approve or reject his nominee….

"I'm amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there," Obama said.

"The Constitution is pretty clear about what is supposed to happen now," Obama, a former constitutional law professor, told a news conference at the close of a two-day meeting with leaders from Southeast Asia.

I. What the Constitution Says.

The Constitution is indeed clear on this issue, but not in the way the president suggests. Article II, Section 2 of the Constitution states that the President "shall nominate, and 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." Notice that the Senate is not required to give its "advice and consent." Rather, its consent is a prerequisite to enabling the president's nominee to take up his or her office.

Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president's nominee at all. However, Article I, Section 5 states that "Each House may determine the rules of its proceedings." That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so—just as it can refuse to vote on bills, treaties, or any other business that comes before it.

This interpretation of the text is consistent with years of practice. Both Democrats and Republicans have often blocked judicial nominations by filibustering them or otherwise preventing them from coming to a vote. In one well-known case, the Democrats held up George W. Bush's nomination of Miguel Estrada to the DC Circuit for over two years, until he was finally forced to withdraw without ever getting a vote of any kind. They did so because they had concerns about Estrada's judicial philosophy—exactly the same reason why Republicans might end up blocking Obama's Supreme Court nomination today.

Historically, most such refusals to vote involved nominations to the lower courts rather than the Supreme Court. But the Constitution does not establish different rules for Supreme Court nominations as opposed to lower court ones. Any procedure that is constitutional for the latter is also permitted for the former. Blocking a Supreme Court nominee may be unwise, irresponsible, or politically risky. It may be worse behavior than blocking a lower court nomination. But it is not unconstitutional.

In July 2007, Senator Charles Schumer—then, as now, a leading Democratic spokesman on judicial confirmation issues—argued that the Senate "should not confirm a [Bush] Supreme Court nominee EXCEPT in extraordinary circumstances." He was willing to use the filibuster to prevent a vote, if necessary. Reasonable people can disagree about the soundness of Schumer's negative assessment of Bush's likely appointees. But the Senate had every right to adopt the approach he advocated.

Although the Constitution does not require it, the confirmation process might well work better if the Senate adopted rules that require a timely vote on every judicial nomination. Like Jonathan Adler, I would welcome a bipartisan deal along those lines. But unless and until such an agreement comes into force, senators of both parties have every right to use the existing rules to block Supreme Court nominations. Neither can reasonably be expected to accept unilateral disarmament.

II. Why Senators have the Right to Consider Nominees' Judicial Philosophy.

In deciding whether to block a nomination, senators also have every right to consider the nominee's ideology and judicial philosophy, not just his or her professional qualifications. Nothing in the Constitution forbids such consideration. Responsible senators can and should scrutinize an attribute that might well have a major effect on the nominee's future performance on the bench.

No one explained this point better than then-Senator Barack Obama, in his speech defending his vote against the confirmation of Justice Samuel Alito in 2006 (Obama had previously advocated filibustering the nomination, so it would not come to a vote at all):

There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an all-around good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise AND consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record.

Objections to the nominee's judicial philosophy led Obama to oppose Alito's nomination and advocate a filibuster, even though he had "no doubt that Judge Alito has the training and qualifications necessary to serve" and conceded that Alito "is an intelligent man, and an accomplished jurist."

Lest readers think I have come around to then-Senator Obama's position only now when it is convenient to do so, I should point out that I said much the same thing back in 2007, during the Bush administration, when I supported Senator Schumer's views on the subject. I will be happy to say it again during the next administration.

Senators cannot reasonably expect a nominee whose judicial philosophy matches their own in every way, and they should not let it be the only factor in their decision. But it would be a mistake to ignore this extremely important aspect of a nominee's record.