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The Constitution Does Not Require the Senate to Vote on a Nomination


Senator Schumer appeared Sunday on ABC's This Week and responded to suggestions that the Senate might not confirm the lame-duck President's nomination to replace the late Justice Scalia: "show me the clause [in the Constitution] that says [the] president's only president for three years."

True, Presidents serve four-year terms. But here's a question for Senator Schumer: Can you show me the clause that says the Senate must vote on, let alone confirm, a President's nominee?

I'll save him the effort: There is no such clause in the Constitution.

Article II, Section 2 of the Constitution provides that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court."

It could not be simpler. The president nominates someone. If the Senate gives its advice and consent, then the president can appoint him. But nowhere does the Constitution say that the Senate is required to act on the president's nominations. The Framers certainly didn't understand the Senate to bear such an obligation. And the Framers who drafted that document certainly didn't say that the Senate bore such an obligation.

That is a point I offered once in the Harvard Journal of Law and Public Policy. Writing amidst the war over President Bush's judicial nominations, I looked at the founding debates at the Constitutional Convention of 1787, and the ratification debates that followed, and found no indication of any expectation that the Senate would be required the vote on a President's nominees.

The Framers expressly based the Constitution's "advice and consent" model on the approach used in Massachusetts, under the State's Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the "Privy Council," the body that provided constitutional advice and consent.

But the best evidence of the Senate's power not to vote on nominations is found in the Framers' rejection of an alternative approach to appointments. As an alternative to the "advice and consent" model, James Madison proposed a discretionary Senate veto. Under that plan, a president's nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the "advice and consent" model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

And history reflects the Framers' choice. Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

To that end, the Senate can structure its own rules to govern the advice-and-consent process. It had constitutional power to establish the filibuster system. It has constitutional power to abolish or reform the filibuster. And it probably should. But the Constitution leaves this choice to the Senate alone—just as it leaves the Senate free to decide whether to consider a president's judicial nomination.

Of course, Senator Schumer knows as well as anyone that the Senate is not constitutionally obligated to give judicial nominations an up-or-down vote. From the very outset of George W. Bush's presidency, Schumer was ready to block a vote on any of his Supreme Court nominations. In fact, Schumer announced in mid-2007—with a year and a half left in Bush's presidency—that he would block any further nominations Bush might make to the Court. (He added that the failure of his effort to filibuster the Alito nomination, barely a year into Bush's second term, one of his "greatest failings and regrets.")

President Obama once shared Schumer's fondness for filibustering Supreme Court nominations. But now he, like Schumer, sees things quite differently. "I plan to fulfill my constitutional responsibilities to nominate a successor in due time," he said yesterday, before asserting that the Senate must "fulfill its responsibility to give that person a fair hearing and a timely vote."

Obama's last point repeated almost verbatim the words of his predecessor. "The Senate has a constitutional responsibility to hold an up-or-down vote on every judicial nominee," President Bush said in response to Senator Obama's and Schumer's failed filibuster, a point Bush pressed repeatedly throughout his presidency.

In those days, President Obama was among the loudest critics of presidential power. Today he asserts presidential power more aggressively than his predecessor ever did. The Senate should assert its own power with no less vigor. Let ambition counteract ambition.

Adam J. White is a visiting fellow at the Hoover Institution.