President Barack Obama suggested that even the late Justice Antonin Scalia would have thought the U.S. Senate was duty-bound to consider whether to confirm his successor on the Supreme Court.
The problem for Obama: The Constitution doesn’t say that, at least not explicitly. The pivotal words say the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court justices. It doesn’t actually say the Senate has to do anything, and in a separate provision the Constitution says both houses of Congress can determine their own rules.
"The text nowhere requires the Senate to hold hearings or give a vote," said Ilya Somin, who teaches constitutional law at George Mason University School of Law in Arlington, Virginia. "The only requirement is that a nominee can’t actually take a position on the court unless and until the Senate gives its advice and consent."
Scalia’s unexpected Feb. 13 death leaves the court split 4-4 between Republican and Democratic nominees, so an Obama nominee would tip the balance to the Democrats for the first time since the beginning of 1972. Republicans insist that the next president – who will take office in January 2017 – should make the nomination. In the meantime, that would risk a string of evenly divided decisions that would set no legal precedent.
Obama said Tuesday the Senate has an obligation to take up his promised nomination of a successor to Scalia. He invoked a version of originalism, Scalia’s own school of constitutional interpretation, which focused on the words and their meaning at the time they were adopted.
"The Constitution is pretty clear about what is supposed to happen now," said Obama, who taught constitutional law at the University of Chicago Law School. "When there is a vacancy on the Supreme Court, the president of the United States is to nominate someone, the Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court."
At the 1787 constitutional convention, the framers considered and rejected a proposal offered by James Madison that would have eliminated the advice-and-consent provision. Madison instead would have given the president the appointment power, subject to a veto by majority vote of the Senate.
"They expressly rejected a proposal to require affirmative rejection of a nominee by the Senate to prevent confirmation," said Jonathan Adler, a constitutional law professor at Case Western Reserve University in Cleveland.
Erwin Chemerinsky, dean of the University of California Irvine School of Law, said the framers expected the Senate to act. If senators could simply ignore a president’s nomination, they would have the power to undermine the judiciary, he said.
"The Constitution has to be interpreted to make sense, and it doesn’t make sense unless you say the president nominates and the Senate has to give advice and consent," he said.
‘Power for three’
Democratic Senator Chuck Schumer of New York said Senate inaction would also undermine the president’s constitutional prerogatives. "The Constitution does not say the president serves for four years but only has power for three,” said Schumer, who serves on the Senate Judiciary Committee, the panel that would consider a nomination.
Somin said the framers intended for the Senate to have that type of power.
"The whole point of the confirmation process is nobody is going to be able to get on the Supreme Court unless the president and the Senate agree," he said.
History provides only limited guidance. Chemerinsky said presidents have made 24 nominations in the last term of their presidency, and 21 have been confirmed.
Still, nominations during the presidency of John Tyler provide at least some precedent for Republicans. Tyler was elected vice president on the Whig ticket in 1840 and became president after William Henry Harrison’s death. He then broke with the Whig party, leaving himself without a constituency in Congress.
He paid the price with his Supreme Court nominations. Starting in January 1844, the last full year of his presidency, Tyler nominated five different people for two vacancies. Only two of those five ever received a Senate vote, and just one, Samuel Nelson, was confirmed.
Senate Republicans have said Obama should leave the nomination to the next president. "We are not going to bring this nominee up this year," Senator Jeff Sessions of Alabama, who serves on the Judiciary Committee, said Tuesday on Fox News.
Some senators, including Judiciary Committee Chairman Chuck Grassley of Iowa, have left open the possibility that they might be willing to hold hearings on Obama’s nominee.
Chemerinsky said that, even if the Senate is obligated to take up a nomination, the only way to enforce that requirement would be public pressure.
"You can’t sue the Senate to make them hold a hearing or to make them confirm somebody," he said.