Bench Memos

Law & the Courts

History of No Senate Hearing for Nominees

In yet another pseudo-originalist claim, David Gans of the Constitutional Accountability Center argues on Slate that the Senate has a constitutional duty to “consider” a nominee. He slides from that nebulous or meaningless assertion—senators obviously are “considering” the Garland nomination—to the suggestion that Merrick Garland is entitled to receive a hearing before the Senate Judiciary Committee. (More precisely, Gans seems to be arguing that a committee hearing is a sufficient way, and is the Senate’s favored way, of carrying out its supposed constitutional duty.)

Gans doesn’t engage any of the arguments I’ve made against silly claims like his. I’ll limit myself here to noting that the Senate has often failed to provide hearings to judicial nominees (who, of course, like executive-branch nominees, are covered by the same Appointments Clause that applies to Supreme Court nominees).

According to this Congressional Research Service report, for example, in 2007 and 2008, the Democrat-controlled Senate Judiciary Committee failed to give hearings to 31 of George W. Bush’s judicial nominees. Similarly, in 1991 and 1992, the committee (also under Democratic control) failed to give hearings to 52 of George H.W. Bush’s judicial nominees.

If one expands the scope to include executive-branch nominees, it’s a safe bet that the Senate has, over the life of its committee structure, refused to give hearings to thousands of nominees.

In short, there is no basis in the text of the Constitution (see point 1 here) or in Senate practice for the proposition that the Senate has a constitutional duty to give Judge Garland a committee hearing. And I’m confident that Garland himself would agree. 

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