Justice Antonin Scalia’s greatest legacy was his
tireless championing of originalism. The method of interpretation he
advocated—following the Constitution’s text and history where they lead—offers
clear lessons for the current
political struggle over the vacancy created by his death, especially now
that President Barack Obama has fulfilled his constitutional
duty by nominating
D.C. Circuit Chief Judge Merrick Garland to the Supreme Court.
Since Scalia’s passing, Republicans in the Senate have engaged in an unprecedented campaign of obstruction, announcing—mere hours after news broke of Scalia’s death—that they would refuse to act on any potential Obama nominee, compromising the Court’s ability to perform its function of establishing a binding rule of law for the nation. Senate Republicans, led by Senators Mitch McConnell and Judiciary Committee Chair Chuck Grassley, have vowed not to meet with any nominee, not to hold any confirmation hearings, and not to vote on any nominee. The claims made by these senators that they can fulfill their “advice and consent” responsibilities under the Constitution by doing nothing cannot be squared with the Constitution’s text and history. The Constitution requires the president and Senate to work together to ensure a fully functioning Supreme Court.
Article II, Section 2 of the Constitution clearly delineates the roles the president and the Senate must play in the appointment process: “The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . .” The language chosen by the Framers was the product of a compromise worked out during the deliberations in Philadelphia. Some delegates preferred giving the Senate the responsibility to appoint judges; others, led by Pennsylvania’s James Wilson, thought that “Experience shewed the impropriety of such appointmts. by numerous bodies” and wished to give the President the power to appoint judges so that “officers might be appointed by a single, responsible person.” At the outset of the Convention, the power to appoint judges was assigned to the legislature. But over the course of the debates, the Framers determined that the choice of a Supreme Court nominee should be made by the president. Today, the president made that choice.
Ultimately, the Constitutional Convention gave both the president and the Senate responsibilities to play, requiring the president to select nominees for the nation’s highest court and the Senate to accept or reject the nomination, giving due consideration to the qualifications of the president’s chosen pick. To some, the advice and consent responsibility was “too much fettering the Senate,” but their views did not carry the day. No one took the view that the Senate could simply refuse to perform its job, undermining the administration of justice.
During the debates over ratification, supporters of the Constitution confirmed what the text provides: Once the president nominates an individual to serve, the Senate has a responsibility to give its consideration to that nominee, either by approving the president’s choice or rejecting it and insisting on a new nominee. In the North Carolina ratifying convention, James Iredell—who would become one of the first justices to serve on the Supreme Court—explained the mechanics of judicial appointment set forth in the Constitution: “The President proposes . . . a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment again ultimately depends on the Senate.” In the Federalist Papers, Alexander Hamilton explained the process in similar terms: “There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice he may have made.” No one argued that the Senate could do an end-run around the process set forth in the Constitution by refusing to consider a nominee at all. On the contrary, it was clear, as future President John Adams wrote in 1789, that under the Constitution, “The whole senate must now deliberate on every appointment . . . .”
The Framers understood that the Senate’s advice and consent power was a narrow one. That power, President George Washington wrote, “extend[s] no further than to an approbation or disapprobation of the person being nominated by the President, all the rest being Executive and vested in the President by the Constitution.” The Senate cannot perform its constitutional role if it refuses to meet with the nominee, hear the nominee’s views, learn about the nominee’s record, and then determine whether or not to confirm the nominee.
The experience of the Massachusetts Council in the 1780s—on which the Framers relied in giving the Senate the responsibility to provide its advice and consent—illustrates advice and consent in action. According to Adam J. White, who has carefully studied the history of advice and consent by the Massachusetts Council during 1780-81 and 1786-87, virtually all nominations considered by the Council were quickly approved. As White explains, the Council’s approval of nominations was “swift and consistent.” Out of a total of approximately 900 nominations studied by White, all but 57 were approved. Most importantly, there is not a shred of evidence that the Council refused to act on nominees.
The Constitution does not require the Senate to confirm a particular nominee, but it does require the Senate to consider the nominee. That is the way the Senate Judiciary Committee has long understood its constitutional responsibilities. The Judiciary Committee’s own website sets out the process of consideration, explaining that once a president nominates someone to fill a Supreme Court vacancy, “The nomination is referred to the United States Senate, where the Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel. Traditionally the Committee refers the nomination to the full Senate for consideration.” This is fully in line with how the Framers understood the Senate’s role under the Constitution, and it’s what should happen with the nomination of Merrick Garland.
The Constitution says the president “shall appoint” Supreme Court justices. Obama has done so. The unprecedented claim being made by Senate Republicans would allow the Senate to totally deprive a particular president of that power. That cannot be squared with the Constitution’s clear text and the critical importance to the Framers of the presidential appointment power. For more than two centuries, the Senate has fulfilled its constitutional responsibilities, approving scores of Supreme Court justices, many during presidential election years, while rejecting others. Never before has the Senate insisted that it can simply ignore the president’s nominee and refuse to participate in the process required by the Constitution. They should not start now.