Contributor, The Volokh Conspiracy

There are strong policy and political arguments in favor of the idea that the Senate should consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Some, however, continue to make the erroneous argument that the Senate has a legal or constitutional duty to consider the nomination.

A recent example is this Boston Globe op-ed by Harvard Law School Dean Martha Minow and Pepperdine School of Law Dean (and former judge) Deanell Tacha. In it, they write:

Article II of the Constitution is not ambiguous. It directs that the president “shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.” The senators swore their oath to the Constitution. An orderly process, adhering to these words of the Constitution, is not only what the law requires; it is essential to preserving the treasure that is our independent judiciary and rule of law.

As I explained in my prior post (linked above), active Senate consideration of judicial nominees may be the more responsible course of action, but it is most definitely not “what the law requires,” under the relevant “words of the Constitution” or otherwise.

Maynooth University Department of Law Lecturer Seth Barrett Tillman further makes this point in a brief letter he sent to the Globe:

Deans Minow and Tacha wrote that “President Obama [has a] clear constitutional duty to nominate a successor” to Scalia. This precise issue was addressed by the Supreme Court in Marbury v. Madison. In 1803, Chief Justice Marshall wrote that the President’s nominating a person to an office is “completely voluntary,” not a duty, much less a constitutional duty. In 1999, the United States Department of Justice’s Office of Legal Counsel issued an opinion stating: “The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinions of the Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees.

Why Deans Minow and Tacha would assert otherwise is a mystery.

The OLC opinion Tillman cites is available here. Tillman has more to say about the alleged constitutional duties concerning judicial vacancies here and here.

When there was a Republican president, Senate Democrats were happy to note that there is no constitutional duty to consider judicial nominees. Speaking at the Center for American Progress in 2005, then-senator Robert C. Byrd (D-W.Va.) defended the Senate’s prerogatives. According to Byrd:

There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent. President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up or down vote. The Constitution doesn’t say that, it doesn’t even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.

Byrd’s remarks were subsequently endorsed and placed into the Congressional Record by then-senator Joe Biden (D-Del.). At that point in time, Byrd and Biden were defending the proposition that a minority of senators should be able to prevent the confirmation of a judicial nominee.

Speaking of the vice president, this week Biden gave a speech at Georgetown University in which he tried to deny that he ever suggested the Senate should refuse to consider a Supreme Court nomination once the “political season” had begun in a presidential election year.  According to Biden,

I made it absolutely clear that I would go forward with the confirmation process, as chairman — even a few months before a presidential election — if the nominee were chosen with the Advice, and not merely the Consent, of the Senate — just as the Constitution requires.

This is a dishonest claim (and I do not make such a claim lightly).

As I explained here (and Ed Whelan details here), Biden’s 1992 speech both advanced the idea that there should be no nomination or confirmation during the remainder of the year should a vacancy arise — going so far as to suggest that President Bush should not even nominate someone to fill a vacancy, should one arise — and articulated a new standard for confirmations to take effect after the election. It was only in this latter part of the speech — which, again, discussed what should happen after the next election — that Biden said that presidents and the Senate should work together to fill court vacancies with moderate nominees. Biden’s full 1992 remarks — all 20,000 words with insertions — are available here.

It would have been far better for the vice president to have simply acknowledged that no vacancy arose in 1992 and (fortunately for the country) the Senate never had an opportunity to follow his advice. He could then have acknowledged his own (and the president’s) role in the unprecedented filibuster of President Bush’s judicial nominees (in part with an eye to preventing some from becoming viable Supreme Court candidates) and then explained why these prior actions — combined with Republican retaliation in the 1990s and since — have been bad for the judiciary and bad for the country. Such a speech could have been a significant step toward de-escalating the current conflict and perhaps even toward increasing the likelihood that Garland may eventually be confirmed. Instead, the vice president elected to weave a fantastical tale that has little relation to the positions and actions he has taken in the past — and is almost as fantastical as the notion that the Senate has a constitutional obligation to act on a judicial nominee.