Bench Memos

Law & the Courts

Excellent McCaughey/Mukasey Op-Ed on Senate Role

In a Wall Street Journal op-ed yesterday, former New York lieutenant governor Betsy McCaughey and former Attorney General Michael B. Mukasey refute the notion that the Senate has a constitutional duty to take some sort of action on a Supreme Court nominee. An excerpt:

The wording of the Constitution and the decisions [the Framers] made in the summer of 1787 show they wanted the Senate to control the confirmation process, free to consider or ignore a nomination. The Constitution directs that the president “shall nominate,” but he may appoint only with the advice and consent of the Senate. There is no direction that the Senate “shall” provide its advice and consent, no corresponding obligation on legislators to act.

At the Constitutional Convention, the framers considered several different ways for judges to be selected: by the House of Representatives, the Senate, or the president. On July 18, 1787, delegate Nathaniel Gorham of Massachusetts proposed allowing the president to appoint, provided that the Senate consented by majority vote. This replicated a provision of the Massachusetts Constitution of 1780 that Gorham used as a model.

Delegate James Madison, who favored a strong presidency, objected. He proposed instead allowing the president’s appointment to become effective “unless disagreed to” by the Senate within a specified number of days. Under Madison’s proposal, inaction was equivalent to approval. But Madison was outvoted. A majority of the framers wanted the Senate to control the fate of a nominee, not the president.…

Ultimately, the convention approved Gorham’s proposal.

That is why, over the last two centuries, 33 nominees to the high court have failed to win confirmation. Of those, five were simply ignored, which is what the Democrats fear might happen to Merrick Garland.

Beyond demonstrating that the Republican stance on the Garland nomination is constitutionally permissible, McCaughey and Mukasey also soundly defend it as reasonable:

The court has taken up many politically charged issues since the 1960s, from contraception to abortion to gay marriage, often with at least tacit acceptance by the political branches, which sometimes prefer to avoid responsibility for resolving controversies. Thus, it is at least reasonable to argue that filling the current vacancy should be part of the political process of selecting a new president.

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