Bench Memos

Law & the Courts

Does Anyone Really Not Understand This?

On SCOTUSblog, law professor Michael Gerhardt offers a good primer on what lies ahead for Judge Neil Gorsuch in the confirmation process. Gerhardt, who teaches constitutional law, has advised the Clinton White House and Senate Democrats on various Supreme Court confirmation battles.

Because the elementary point is somehow still contested by some, I will highlight that Gerhardt recognizes that Senate Republicans had the constitutional power to defeat the Garland nomination by inaction (even as he opposed their strategy):

The Constitution barely sketches the process for making Supreme Court appointments. Article II provides the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Besides the fact that Article I empowers each chamber of Congress “to determine rules” for its internal governance, the Constitution confers discretion on the president and the Senate over how to exercise their respective authorities.…

Once there has been a Supreme Court nomination, senators can exercise their “Advice and Consent” authority in several ways. They can withhold their advice and not undertake any other action, as the Senate did with President Barack Obama’s nomination of the highly regarded judge Merrick Garland to the seat opened as a result of the death of Justice Antonin Scalia almost a year ago. They can defer to presidents, as they did in approving all nine of President Franklin Roosevelt’s Supreme Court nominations. They can hold hearings and decide to take no further action, as occurred when the Senate could not invoke cloture to stop a filibuster against President Lyndon Johnson’s nomination of then-Justice Abe Fortas as Chief Justice of the United States. They can hold hearings and vote against the nomination, as the Senate did when it rejected President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987. They can hold hearings and approve the nominations, as the Senate has done since 1900 with virtually every Supreme Court nominee with strong credentials and mainstream constitutional views. [Emphasis added.]

Just one observation on Gerhardt’s repeated “They can hold hearings and …” line. As I’m sure Gerhardt would agree, and as is implicit in his first paragraph, senators don’t have to hold hearings in order to proceed on a Supreme Court nomination. The Constitution says nothing about Senate committees or hearings, and no hearing on a Supreme Court nominee took place before 1916. That said, the hearing is now a routine and accepted feature of the process (and my clarification here certainly isn’t intended to suggest that it be bypassed).