Bench Memos

Law & the Courts

Senator Dick Durbin, Fantasy Textualist

Here’s an exchange that Senator Dick Durbin, a Democrat on the Senate Judiciary Committee, had with Gwen Ifill on PBS NewsHour yesterday (emphasis added):

Ms. Ifill (9:22): I do have to ask what I asked . . . ended with Senator Gardner, which is this decisions by the Republican leadership not to hold hearings, not to even hold meetings with anyone the President nominates. Uh, this have never happened before. What’s your reaction to it?

Sen. Durbin (9:35): There is no constitutional precedent for what the Republicans announced today. Not only did they say we won’t consider the President’s nominee, we won’t have a hearing, we won’t have a vote, Senator McConnell the Republican leader said “I won’t even meet with this nominee.” That has never happened before in history. The Constitution which we’ve sworn to uphold is very clear when it comes to Article two, section two. The President shall appoint a nominee to fill a vacancy on the Supreme Court and the Senate shall by advice and consent vote on that nominee. Those are not, uh, vague words. Those are words that impose a responsibility on the Senate which the republican leader is ignoring.

Let’s unpack some of the falsehoods:

1. No, Senator Durbin, Article II, section 2 of the Constitution does not say what you claim it says. It says, rather, that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court” (and other federal judges). It nowhere imposes on the Senate a requirement to vote on any nominee.

That’s why you were right, as I argued in your defense back in 2005, that you had the constitutional power to filibuster George W. Bush’s judicial nominees and thus deprive them of an up-or-down vote. That’s why you were able to vote against cloture on the nomination of Justice Alito. That’s why you were able to bottle up so many judicial nominees in committee when the Democrats had control of the Senate in 2007 and 2008.

You must know that what you said was false. So stop lying to the American people.

2. For the same reason, there is plenty of “constitutional precedent” for the path Senate Republicans are taking. That precedent lies in the Senate’s repeated exercise of its plenary constitutional power to proceed as it wishes in exercising its advice-and-consent function—including by not proceeding to final votes on nominations (countless times on nominations generally and more times on Supreme Court nominees than I’m going to spend my time counting).

3. The predicate of Ifill’s softball question is also false. For most of American history, there were no hearings at all on Supreme Court nominees. (And I doubt very much that Ifill has any serious factual basis for her claim that senators have never before declined to meet with a Supreme Court nominee.)

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