More Law Professors Behaving Badly

by Ed Whelan

In fairness to law professor Meg Penrose, I will note that I have discovered that she is far from alone in the legal academy in her badly flawed claim that the Constitution somehow requires the Senate to proceed to an up-or-down vote on a Supreme Court nomination. As this National Law Journal article reports, some 350 law professors have signed a letter to Senate leaders contending that the Senate has a “constitutional duty” to give President Obama’s nominee “a prompt and fair hearing and a timely vote.” The signatories include prominent liberal constitutional scholars Laurence Tribe and Erwin Chemerinsky.

The law professors who have signed the letter have beclowned themselves. As another liberal law professor, Harvard’s Noah Feldman, has explained, the Constitution doesn’t speak at all to how the Senate should exercise its advice-and-consent role but instead leaves that to the “political battle.” (Addendum: Ditto from Vik Amar.) It’s entirely legitimate for folks to present their political arguments against the Senate’s not acting on a nominee, but for law professors to miscast a political argument as a constitutional claim is an act either of dishonesty or of deep confusion.

Some observations (and please pardon me for repeating the basics, covered more fully in these posts):

1. The Appointments Clause (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything. (It’s entirely through the operation of the Senate’s plenary rulemaking power that the Senate has committees at all and empowers those committees to hold hearings.)

2. The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. So anyone contending that the Appointments Clause somehow requires “a prompt and fair hearing and a timely vote” would have to maintain the same position for all nominations throughout American history.

Do the law-professor signatories believe that the Senate violated its constitutional duty on the thousands of occasions in which it has failed to proceed to an up-or-down vote on a nominee (including a dozen or more times on Supreme Court nominees)? Do they believe that the filibuster of nominees is unconstitutional? If the answer to either question is yes, how is it that they have never publicly stated such a position before? (It’s also a safe bet that many of them cheered on the obstruction and filibuster of Bush 43 judicial nominees; I certainly don’t recall hearing objections from Tribe and Chemerinsky.)

3. The law-professor signatories mistakenly contend that Republican senators “plan to withhold advice and consent” on an Obama nominee. But the reality of the matter is that Republican senators are already exercising their advice-and-consent power when they tell President Obama that they won’t confirm anyone this year. And they will continue to exercise that power when they maintain the same position after a nomination is made. (Do the law professors imagine that this is the first time in American history when senators have categorically opposed filling a vacancy?)

(The law professors also claim that an eight-justice Court for the “better part of two terms” would impose significant costs. This claim, unlike their primary constitutional claim, is fairly within the realm of political argument. As I’ve explained, I don’t think it’s weighty.)

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