The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2017, I wrote an article titled SCOTUS After Scalia. In the piece, I tried to sketch out how future conflicts over the Supreme Court would arise. One of my proposals focused on reversing the Supreme Court confirmation process. Currently, Senators simply provide "consent" after a nomination is made. They do not provide "advice." But Senators could place advice before consent. Specifically, I wrote, they could take a nonbinding vote on the short list before a nomination is even made. This idea would work best where the President and the Senate are controlled by different parties, and confirmation is not assured. In our present moment, the Senate is divided 50-50, but there no guarantee that any nominee would go through.
I've adapted my 2017 plan for an op-ed in Newsweek, titled Senators Should Give Their "Advice" Before Their "Consent."
Here is the intro:
The Supreme Court nomination process is broken. But with a simple shift, grounded in the text of the Constitution, the president and Senate may be able to transform a partisan clash into a bipartisan deliberation. The Constitution provides that the president may nominate Supreme Court justices "with the Advice and Consent of the Senate" (emphasis added). At the White House, President Biden recently reminded everyone that senators do not merely consent through a roll call confirmation vote—they provide "advice as well."
Biden, who has been involved with a dozen Supreme Court nominations, is right. Before a nomination is even made, senators should take a private, non-binding straw poll for each member on the Supreme Court "short list." The president would then have an idea, in advance, of just how bipartisan the real confirmation vote tally might be. That advice is also perfectly suited for our present moment, with an evenly divided Senate chamber. If the senators advise before they consent, Biden can still select one of his preferred nominees and, in the process, reverse the tide of the decades-long confirmation wars.
The notion of seeking senatorial advice before consent is not entirely novel. In June 2003, Senator Patrick Leahy of Vermont asked President George W. Bush "to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination," in order to select a "consensus nominee." Leahy, who chaired the Senate Judiciary Committee at the time, explained that the "Constitution divides the appointment power between the president and the Senate and expects senators to advise the president, not just rubber-stamp his choices." The Bush administration snapped Leahy's olive branch, but the idea has stayed with me. In my view, senators could take non-binding votes on a range of potential nominees before a nomination is made, thus advising before consenting.
If this approach was followed, I think President Biden could get a good sense of how the different members of the short-list would shake out.