Bench Memos

Law & the Courts

Re: Feeble Biden Op-Ed on Scalia Vacancy

A Senate staffer calls to my attention that the Standing Rules of the Senate also contravene Vice President Biden’s ill-founded claim that the Senate has a constitutional duty to process a nomination to a final floor vote. Specifically, Rule XXXI.6 provides:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

(The Constitution—Article I, section 5—gives the Senate plenary power to “determine the Rules of its Proceedings,” and there’s no plausible basis for contending that Rule XXXI.6 rule is itself unconstitutional.)

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