A few weeks have transpired since Justice Antonin Scalia died and the uproar over the nomination of a justice to replace him on the Supreme Court of the United States began. I observed the uproar for about a week and it seemed like Senate Republicans didn’t want President Barack Obama to nominate a replacement for no reason other than just because it was Scalia who died. I have observed for another month since then and have seen Senators’ justifications for not allowing a hearing and a vote on Obama’s nominee Judge Merrick Garland become more nuanced and less focused on Scalia.
It’s ironic and hypocritical that Republicans are not the only Senators who have made the claim that a president should not exercise their duty to appoint a Supreme Court justice. The oft cited “Biden rule” (which is not actually a rule) refers to Vice President Joe Biden saying (when he was a Senator):
It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President [George H. W.] Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.
In 2005, Senator Harry Reid (D) said regarding judges that, “The duties of the United States senator are set forth in the Constitution of the United States. Nowhere in that document does it say that the Senate has a duty to give presidential nominees a vote.” Of course, both Democrat senators made those statements when there was a Republican president. Reid was as wrong about the issue then as the GOP leaders are now and it’s no surprise that he is now supporting the polar opposite side of the issue since Obama is in office.
As a wonk, I follow politics closely and have seen, read, and heard many different justifications made in the Sunday morning news shows and other media. In large part, I find that the justifications used by Republican senators are factual. But even though the veracity of their grounds is sound, their justifications are still not valid. The Senators never cite the Constitution of the United States to justify the claim that they should not hold hearings and vote on Garland’s nomination but the Constitution is the only governing document that is relevant to the Senate’s duty to uphold it.
So let’s take a look at what the Constitution actually does say on the issue in Article II Section 2: “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” The word “shall” makes it the duty of the president to do so and there are no qualifications such as an exception during a president’s last year in office, when the president is nominating a replacement for a justice with an ideology contrary to the president’s, or during a contentious election season. There are no limitations to that duty of any type in the Constitution.
Regarding that clause, many GOP senators are claiming that the Constitution says nothing about how promptly they must give their advice and consent. While that is a true statement, it is not a valid justification for delaying the appointment strictly for political purposes (which none of these senators deny is the reason they want to delay a vote on Garland—in fact, it is their explicit reason). Otherwise, if the Founding Fathers did not specify how long the Senate could delay giving advice and consent with the intent that the Senate use the lack of a deadline to delay advice and consent indefinitely, no justice nominee would ever get appointed when the Senate majority is a different party than the president’s. The Founding Fathers erroneously assumed that the Senate would act like mature adults in carrying out their sworn duty instead of acting like petty schoolchildren.
The word “and” in the beginning of the clause “and by and with the Advice and Consent of the Senate” ties the Senate’s duty to provide advice and consent to the president’s duty to nominate. That means the Senate must do so as judiciously as possible. If there were a war on American soil or some other extraordinary situation, it would be reasonable for the Senate to delay hearings and a vote until after a new president is inaugurated. But it would only be reasonable because of the urgency of making extraordinary circumstances a priority to deal with, not because of the timing of the inauguration.
Both the President and senators vow to uphold the Constitution when they take office. Therefore, Obama has a duty to nominate a justice, which he has done, and the Senate has a duty to give advice and consent on that nomination. Since 1975, the average number of days from nomination to final Senate vote is 67 days. The current congress has passed fewer laws than any congress in modern history, so it’s not as if the Senate has anything else to do. There is no catastrophic situation occurring in the nation at this time. If the Senate fails to hold hearings and vote on the nomination of Garland by the time the GOP and Democrat national conventions are held (barring a major catastrophe in the USA), they are abdicating their duty to uphold the Constitution.