Legal experts: The GOP Senate is trying to have cake and eat it too

The debate over the Supreme Court vacancy left by Justice Antonin Scalia has raged for weeks now.

The right insists there should be no nominee until after the election, so the people can have a say in the decision. The left says the people already had their say when they reelected Obama in 2012.

Democrats say Republicans are being childish; Republicans insist the situation would be the same if the tables were reversed.

What’s going on here? Are senators obligated to consider a Supreme Court nominee in a timely fashion? Do those oft-cited remarks Joe Biden made 20-plus years ago mean anything? What does this whole situation say about the state of U.S. politics?

The Colorado Independent asked three constitutional law professors from University of Denver to weigh in. Their comments have been edited for clarity and brevity.

The Colorado Independent: Do senators have a duty, either constitutionally or politically, to at least consider Obama’s nominee in a timely fashion?

Alan Chen, professor, acting director of Constitutional Rights and Remedies Program: I believe the Senate does have a constitutional duty to vote on — not necessarily vote for — a nominee who has been properly presented to them by the President. The duty comes from Article II, Section 2, Clause 2 [of the Constitution], which states the President “shall” nominate and with the advice and consent of the senate, “shall” appoint… “Judges of the Supreme Court.”

The duty of the Senate, however, is not formally enforceable other than through the political process. So protests of Senators who have announced that they will not even hold hearings seem like an appropriate reaction from the public — as, of course, are protests on the other side. Ultimately, the appointments process is still a political one.

Ian Farrell, assistant professor: As far as I am aware, no president has ever declined to nominate a Supreme Court Justice because it was an election year. It’s true that very few Justices have been nominated in an election year, but that’s simply because very few positions on the Court have become available in an election year, especially in the past 60 years.

The Senate’s claim that the nomination should wait until after the presidential election because the Republicans won seats in the mid-term congressional election is likewise wholly without foundation. This supposed principle would potentially prevent any President from nominating a Justice for half of every presidential term. I think there is a strong argument that the Senate’s decision to not consider any nominee — no matter who that nominee is — does not satisfy their role of giving “advice and consent” to the President on the appointment of Supreme Court Justices.

Justin Pidot, associate professor with tenure: There are no court cases that I am aware of related to this issue, and my strong expectation is that a court would not decide it under what is called the “political question doctrine,” which basically says that courts shouldn’t decide issues that the constitution commits to the other branches of government.

The duty, if there is one, can arise only from the text of the constitution itself. Whether that duty exists will first be for the Senate to decide, and subsequently it will be for voters to decide. If the public believes that the Senate has an obligation to consider a nominee in a timely fashion, then the public can vote senators out of office who breach that duty.

Related: Does Cory Gardner need a civics lesson on court appointments?

The Colorado Independent: McConnell keeps citing “Biden’s rule,” but the circumstances in 1992 under which Biden spoke were different. Were the then-Senator’s comments binding? How and why is McConnell right or wrong in citing this “rule”?

Ian Farrell: [Biden] was discussing the hypothetical retirement of a Justice in July or August, which would put the confirmation hearings at the height of the general presidential election (which is very different to this appointment, which became vacant in February). Statements by prior Senators during a floor speech are not binding whatsoever. The most that can be said for McConnell’s “Biden rule” is that he is pointing out that a Democrat once made a similar argument to the one McConnell is making now — but even that is a stretch, given the difference in context between the current nomination and then-Senator Biden’s comments.

Justin Pidot: McConnell is citing “Biden’s rule” because he think it makes the case in the court of public opinion that the Senate doesn’t have to act. I suspect that the Republicans in the Senate will stick to that position up until the point that they believe refusing to consider the President’s nominee will have significant political consequences for them in the next election.

Alan Chen: There is no Biden rule. That is the spin put on a statement by a single Senator at a particular moment in history about a hypothetical situation that never arose. It’s ridiculous to call it a rule. What it is is the Republican Senators arguing that Vice President Biden is behaving hypocritically (which maybe he is).

The Colorado Independent: What does it say about the state of the US Senate right now that so many are willing to defy the President? Does the fact that Merrick Garland is considered a moderate make a difference in the senate’s responsibility to act?

Justin Pidot: That Merrick Garland is a moderate may make it more politically costly for the Republicans to block consideration of his nomination, but that doesn’t affect their constitutional duty. I think the Constitution does impose an obligation on the Senate to consider a nominee offered by a president.

Given the importance of the Supreme Court, it is particularly egregious for the Senate to refuse to consider a nominee for that position, but in the end, it will be the public who is positioned to pass judgment on whether this is a problem or not.

Ian Farrell: The Senate’s willingness to defy the President is nothing new — at least, it is not new for this President and this Senate. The Senate’s refusal to even consider Judge Garland’s nomination is simply a continuation of this obstructionist strategy, and cuts against the tradition of considering issues — whether proposed bills or court nominees — on their merits.

Congress is meant to be a check on the President, but traditionally that has worked by incentivizing the President to choose a moderate candidate — which is exactly what President Obama did here.

The Republican Senate is trying to have its cake and eat it too: They are blocking the nomination, while at the same time trying to avoid responsibility and accountability for blocking the nomination.

The democratic system can only work when voters are able to hold the right elected officials accountable for their actions, and this is completely undermined by the Senate leadership’s attempts to deflect responsibility for their decision to obstruct the filling of Justice Scalia’s vacancy.

Alan Chen: I don’t think the Senate has a duty to confirm the President’s nominee. I think they have a duty to give their advice and consent as required by the Constitution. Simply refusing to even meet with the nominee, much less hold hearings, is not giving advice and consent.

What is going on is a little bit embarrassing, frankly, to many of us who actually study, research, and teach about the Constitution and the Supreme Court.

Photo credit: Steve Jurvetson, Creative Commons, Flickr


  1. I didn’t realize the Democrat Party had the “right” to FORCE enemies of the Constitution onto the American people.

    I didn’t realize the Democrat Party had the “right” to “CREATE LAW” outside the “Limited & enumerated” powers granted under the Constitution.

    I didn’t realize the Democrat Party had the “right” to hi-jack the Presidency with a lying international terrorist such as Obama…. or force the States and people in violation of the 10th Amendment to accept his illegal edicts, EO’s, and treasonous appointee’s.

  2. Gabriel King: Did you froth at the mouth as you typed your insidious lies?

    Shame on you for perpetuating myths and innuendos that are just plain false.

  3. largest impact of the Senate majority’s efforts to block any action on a Supreme Court nominee: an increased sense of the Court as a partisan enterprise.

    As Chief Justice Roberts said, before Justice Scalia’s death, “We don’t work as Democrats or Republicans … and I think it’s a very unfortunate impression the public might get from the confirmation process.”

Comments are closed.