Senate Republicans Vow No Hearings On Supreme Court Nominee From President Obama

Notwithstanding polling that indicates the American public disagrees with them, Senate Republicans emerged from a meeting today largely united on the idea of not giving any Supreme Court nominee named by President a hearing, or even the courtesy of a meeting.

Scalia Seat SCOTUS

Despite a rash of recent polls that suggest that the American public as a whole opposes their position, Senate Republicans emerged from a meeting today largely united in the position that they will not give any consideration at all to a Supreme Court nominee submitted by President Obama:

WASHINGTON — Senate Republican leaders, trying to slam shut any prospects for an election-year Supreme Court confirmation, said on Tuesday they would not even meet with President Obama’s nominee to replace Justice Antonin Scalia. Senator Mitch McConnell of Kentucky, the majority leader, urged the president to reconsider even submitting a name.

At the same time, Senate Judiciary Committee Republicans unanimously rejected any confirmation hearings.

The actions of Senate Republican leaders and the committee of jurisdiction sent a clear signal to President Obama and wavering Republicans that their ranks would not crack. It also thrust the Senate into unprecedented territory with partisan rancor giving way to deadlock on one of the institution’s basic constitutional responsibilities.

Democrats lashed out but seemed powerless to force Republicans to alter course. “The Senate, the world’s greatest deliberative body?” the Democratic leader, Harry Reid of Nevada, asked, railing against the Republicans. “They’re not going to deliberate at all.”

But Mr. McConnell showed no sign of relenting to the pressure Mr. Obama and Senate Democrats were trying to apply.

“This is his moment,” Mr. McConnell said on the Senate floor, addressing the president. “He has every right to nominate someone. Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right. Even if he never expects that nominee to actually be confirmed but rather to wield as an electoral cudgel, that is his right.”

Mr. McConnell added: “But he has also has the right to make a different choice. He can let the people decide and make this an actual legacy-building moment rather than just another campaign roadshow.”

Mr. Obama has made clear that he will choose a nominee, and two Republican senators, Susan Collins of Maine and Mark S. Kirk of Illinois, have already broken ranks to say that they would be willing to vote on a candidate.

But Mr. McConnell and the vast majority of Republicans were holding firm.

“I don’t think we should have a hearing. I think we should let the next president pick,” said Senator Lindsey Graham, Republican of South Carolina, who a decade ago was one of 14 senators who brokered a deal to end the threat of filibusters against President George W. Bush’s judicial nominees.

As G.O.P. senators emerged from a meeting in Mr. McConnell’s office, Senator John Cornyn of Texas, the No. 2 Republican, said, “We believe that the American people need to decide who is going to make this appointment rather than a lame-duck president.”

Aides to Mr. McConnell said the majority leader had spoken to Mr. Obama and told him directly that no nominee to the Supreme Court would be confirmed before the election, and they expressed confidence that the Republicans had chosen the best course of action — or inaction, as the case may be.

Mr. McConnell gathered Republican members of the Senate Judiciary Committee in his suite in the Capitol, just off the Senate floor, to confer before a weekly policy luncheon attended by all Republican senators.

While Mr. McConnell has already stated that no nominee will be confirmed, it is ultimately up to the committee chairman, Senator Charles E. Grassley of Iowa, to decide if any hearings will be held on Mr. Obama’s pick.

As The Washington Post reports, Senate Republicans are also threatening to block the next President’s Supreme Court nominee if they find it to be unacceptable:

McConnell declined to address whether the next president would definitely win confirmation of his or her selection for the court. Under a rules change orchestrated by Democrats in 2013 when they held the majority, Supreme Court selections are the only nominees still subject to a 60-vote threshold to end a filibuster and advance to the final confirmation vote.

After the news conference ended, Sen. Roger Wicker (R-Miss.), chairman of the National Republican Senatorial Committee, sought out The Washington Post to make clear that the filibuster possibility next year remained intact because then-Senate Majority Leader Harry M. Reid (D-Nev.) left it in place two-and-a-half years ago.

Reid, now the minority leader, accused the GOP of “changing the Senate” with its move to block Obama’s nominee.

“We have to have a government that functions,” he said. “We have to have a Senate that operates with collegiality and fairness.”

Democrats have tried to pressure Republicans to at least consider a nominee by warning that a Supreme Court blockade would hurt GOP candidates in November.

[Harry Reid ties Senate’s Supreme Court battle to Donald Trump]

Sen. Charles E. Schumer (D-N.Y.) called the GOP position “beyond the pale” and said that “it will not stand.”

Schumer, of course, became the center of some controversy on this issue over the weekend when it was revealed that he had taken a substantially similar position to the one Republicans are taking today during the final months of the George W. Bush Administration. In addition to Schumer’s remarks from 2007, yesterday we learned about similar comments made by Vice-President Joe Biden in 1992 when he was Chairman of the Senate Judiciary Committee regarding potential nominations by President Bush prior to that year’s Presidential election. Additionally, The Washington Post’s Glenn Kessler has uncovered a number of statements from politicians on both sides of the political aisle regarding appointments during election years that show how that the position that is taken depends entirely on which party is in power in the White House and/or the Senate at a given time in history, or in other words that this is yet another issue where people are apt to change position at the drop of a hat based on whose ox is being gored.

The Republican position isn’t entirely unanimous, of course. Prior to today’s Caucus meeting, Senators Mark Kirk of Illinois and Susan Collins of Maine both said that they believed that the Senate should at least hold hearings for the President’s nominee even if that nominee is ultimately rejected in a cloture vote or by some others means. Previously, four other Senators, including Judiciary Committee Chairman Chuck Grassley, along with Thom Tillis, Dean Heller, and Ron Johnson, had made statements that suggested that they would at least consider holding hearings for a nominee. However, that was before the latest push by conservative activists to double down on the “No Hearings, No Votes” position that became something of a mantra in the hours after Justice Scalia’s death more than a week ago and to essentially threaten to go to war against Senate Republicans if they go against the initial promises not to hold hearings or votes on an Obama nominee.

For the moment at least, Senate Republicans are choosing to side with their base on this issue and to ignore the risks that they are taking both with respect to the Presidential election and the battle for control of the Senate. The fact that the initial polling seems to be indicating that the American public as a whole is opposed to their position may lead some to question to logic of this position, but when those same polls show that the majority of Republicans overwhelmingly support the “No Hearings, No Votes” position the fact that they’re taking this position isn’t surprising at all. As things stand, it’s arguably the case that Senate Republicans have more to fear in retribution from their party’s base than they do in taking a position the public opposes, especially since the polling does not make clear just how important voters consider this issue to be and how much it would influence their decision on how they will vote in November. Typically, General Election voters are more influenced by issues such as the economy, their own personal financial condition, and foreign policy related concerns than they are by parliamentary goings on related to Supreme Court nominations. If that remains the case, then Republicans may end up being correct in taking this gamble.

This is why I’ve said from the beginning that this is, in the end, entirely a political decision rather than a Constitutional one and that one’s position on whether it is “right” or “wrong” is, in the end, entirely subjective. If enough voters in enough states think this is an important enough issue to punish the GOP over, they will act accordingly and Republicans may lose control of the Senate. If they don’t, and they’re able to continue holding the line, then whomever is elected President will immediately have a Supreme Court appointment to make and this Republican Senate may find itself dealing with a Supreme Court pick from a newly-elected President Clinton. As Eugene Volokh notes, while there is a Constitutional duty here for the Senate to fulfill, how the Senate chooses to act, and how quickly it chooses to do so, is an entirely political decision:

The problem is that the Constitution leaves confirmation decisions to the political process, with no legal standard. President Obama certainly has the constitutional power to nominate someone, even in an election year (just as President Bush had the power to do so in 1992, if there had been a vacancy). The Senate certainly has the constitutional power to refuse its “consent” to the candidacy, even if this means waiting for a year until after the election. The President was elected by the people, who conferred on him the power to nominate. The Senators were elected by the people, who conferred on them the power to consent or to refuse consent.

The Constitution deliberately leaves these decisions to the political branches, and to the political process within the political branches — with the ultimate constraint being the voters, who can punish either party if they think the party behaves unreasonably or unwisely in this process (note again political criteria, not legal ones).

Now longstanding, broadly adhered to precedents matter even in the political process. Perhaps this respect for tradition and desire for consistency over time is a feature of human nature generally, but it certainly is a feature of American politics, at least some in measure. If there had been a constant practice, for instance, of Senators agreeing to vote for judicial nominees unless those nominees were obviously corrupt or intellectually or professionally unqualified, then there likely would be a strong political backlash to an attempt to depart from this practice. Likewise, if there had been a constant practice of Senators agreeing that every nominee should be considered without regard to there being a looming election, many senators today would be reluctant to buck that practice.

But there seems to be no such practice (see, e.g., Miguel Estrada & Benjamin Wittes’ “There no longer are any rules in the Supreme Court nomination process column in Friday’s post), as then-Senator Biden’s remarks illustrate. And in the absence of such a practice, we come down to more results-oriented politics

In other words, Republicans are making a bet that by refusing to consent to President Obama’s Supreme Court nomination they will have a more advantageous political ball field to play on with respect to this vacancy in January 2017. Whether their gamble proves to be a smart move or a dumb move will be up to the voters. As it stands, it appears from initial polling that they are making an unwise choice, but we won’t know that for sure until November. Additionally, the position that the Senate GOP is taking here is likely to be tested several times over the course of the next several months, starting with the point at which President Obama makes his selection of a nominee known. If that nominee is seen positively by the American public as a whole, then the refusal to even hold hearings could cause voters to turn against Republicans even more than the initial polls seem to indicate. If that starts happening, then Republican leaders will have to decide if it’s more important to appease their base or limit the damage to the party heading into November.

FILED UNDER: Campaign 2016, Congress, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Pearce says:

    Tough talk from a bunch of dudes who are scared of their own constituents.

    We’ll see if they’re standing strong as the ground shifts below them (and it will) through the course of the year.

  2. Tough talk from a bunch of dudes who are scared of their own constituents.

    Isn’t it a good thing if legislators in a representative democracy are “scared” of their constituents?

  3. Scott says:

    Of course, the President is going to nominate someone (the sooner the better). Then the political games will begin. The nominee will have to be a party to or at least very tolerant of the political environment. Probably be a current judge so he/she will be employed while enduring the long wait.

  4. An Interested Party says:

    He has every right to nominate someone. Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right.

    But he has also has the right to make a different choice. He can let the people decide and make this an actual legacy-building moment rather than just another campaign roadshow.

    What a hypocritical douchebag…

    “I don’t think we should have a hearing. I think we should let the next president pick,” said Senator Lindsey Graham…

    More irony from this impotent little man who was foolish enough to even think that anyone would vote to give him the opportunity to run for the presidency…

  5. Tillman says:

    “Slow walking the process beyond historical norms and engaging in a paper chase simply to delay a timely up-or-down vote are not hallmarks of a fair process. The Supreme Court begins its new term on October 3. As Senator Frist has pointed out, the average time for a nomination to confirmation for the current justices was 62 days. The average time from nomination to confirmation for President Clinton was 58 days. Justice Ginsburg was confirmed in only 42 days. The Senate has 72 days to complete action on Judge Roberts’ nomination, in time for him to join the Court by the start of its new term, October 3. By any standard, that is a fair goal. What is not fair and what is, quite frankly, a little curious is for some of our colleagues who, before even having heard a single word of testimony, have already come up with excuses as to why we should depart from this historical standard. It is disturbing that they seek to justify so far in advance why the Court should begin its proceedings at less than full strength.”
    –Mitch McConnell

    Frankly, Senator McConnell puts it best here. Schumer was speaking about hearings being more thorough instead of flat denial of hearings of a president’s nominee, and Biden was speaking in June of an election year with little time left on the Senate schedule. Biden is legitimate hypocrisy, if better timed. However, the only excuse Republicans have to extend a norm to the breaking point is obstruction. Hell, as you note, they’re not even backing up their reasoning by saying the next president will get a hearing!

    The only way this is justified is if you believe (or if you’ve made your voters believe) the president is a tyrant that has gotten perilously close to destroying the country, and filling this vacancy would be the last nail in the coffin.

  6. Moosebreath says:

    Doug,

    “Schumer, of course, became the center of some controversy on this issue over the weekend when it was revealed that he had taken a substantially similar position to the one Republicans are taking today during the final months of the George W. Bush Administration. In addition to Schumer’s remarks from 2007, yesterday we learned about similar comments made by Vice-President Joe Biden in 1992 when he was Chairman of the Senate Judiciary Committee regarding potential nominations by President Bush prior to that year’s Presidential election.”

    You need to look at a few other sources , such as this and read the full quotes:

    “The first alleged example of a Democrat advocating a full election-year blockade is a widely disseminated partial quote by Senator Charles Schumer from 2007 — “we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” The coverage of Schumer’s remarks has usually excerpted the second, and sometimes the first, sentence. But the third sentence, transcribed by Josh Marshall, changes the context completely:

    “We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

    and

    “A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.””

    Care to revise and extend your remarks?

  7. Schumer’s and Biden’s words speak for themselves. The fact that they never had a chance to follow through on their threat because there was no Supreme Court vacancy to act on isn’t really relevant.

    As I’ve said before, anyone who thinks Senate Democrats would not be acting in the same manner as Senate Republicans if Ruth Bader Ginsburg had died in the final year of a Republican President’s term is simply too politically naive to be taken seriously.

  8. Just 'nutha ig'rant cracker says:

    @Doug Mataconis: In this particular case, it doesn’t appear to be. Particularly considering how delusional the Senators and Congresspersons know “their constituencies” (which the GOP base and Conservative bloviatosphere may not actually be) seem to be.

  9. Just 'nutha ig'rant cracker says:

    @Tillman: In practical terms, it may be that a Democrat leaning SCOTUS nominee is the last nail in their coffin. We can hope.

  10. An Interested Party says:

    Schumer’s and Biden’s words speak for themselves.

    Nice disingenuous try Mr. Both Sides Do It…but talk is cheap, the fact remains that it is only Republicans, not Democrats, who are doing this…

  11. Just 'nutha ig'rant cracker says:

    @Doug Mataconis: You were talking about “assuming facts not in evidence” a few days ago? (quack quack!)

  12. Pch101 says:

    Hamilton addressed this in Federalist 76 and 77, and he clearly did not want the Senate to do much more than to prevent the president, who had sole prerogative to choose a nominee, from making a bad decision. Furthermore, he gave us some idea of the type of nominee that the Senate should prevent:

    ….(The Senate will be) an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

    (It’s especially worth noting the last part — judges aren’t supposed to be selected based upon a popularity contest. Mr. Volokh ought to do his homework — we are supposed to use the Federalist in order to understand original intent.)

    Of course, we don’t know who Obama’s nominee is, so we have no way of knowing whether s/he has any of these flaws. But clearly the Senate is supposed to find this out prior to denying consent.

    And Hamilton ultimately wanted the Senate power to contribute to stability, not to detract from it.

    It seems that Hamilton was a miserable failure of a founding father. He presumed wrongly that we would have good sense to do these things without being goaded into doing the decent thing. He should have known better than to expect his successors to have good intentions or to act in good faith.

  13. If you want to pretend that Senate Democrats wouldn’t act in the same blatantly partisan manner under the circumstances I outlined above that’s your choice. The words of Senators Schumer and Biden, along with the actions of Senate Democrats regarding more than a dozen Bush judicial appointees during the early 2000s, say otherwise. Pretending your side isn’t as blatantly partisan and scheming may help you sleep at night, but just remember that it’s a complete and total fiction.

  14. Moosebreath says:

    @Doug Mataconis:

    “Schumer’s and Biden’s words speak for themselves.”

    Yes, they do. This time, try reading the whole quote, including the parts bolded below:

    “We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

    “A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

  15. James Pearce says:

    @Doug Mataconis:

    Isn’t it a good thing if legislators in a representative democracy are “scared” of their constituents?

    In most cases, yes.

    But scared people are careless people, and I would prefer legislators who are scared just enough to know who they serve, but who are also careful to avoid folly. The “no hearings” position is folly.

    The best way for Republicans in Congress to influence the next SC pick would be at the hearings.

  16. Slugger says:

    It is my sense that political discourse in our country has become increasingly partisan and divisive. This trend has coarsened our public life and lowers the ethical floor. I think that we citizens can not expect the politicians to improve this just as we can not expect the average basketball player to stop throwing elbows. As citizens we must make it clear that we reject these actions and want a higher level of behavior.
    Our politicians are acting as though their potshots will only sink the other guys end of the boat. Dr. Mataconis’ position that Republican misdeeds are justified because the Democrats would do just as badly encourages bad behavior. How can we get our elected officials to do better?

  17. HarvardLaw92 says:

    @Doug Mataconis:

    You’re projecting again.

    Are you really going to keep up this “both sides do it” tantrum, or is there a point in our future where you just drop the facade and admit that having a conservative court is more important to you than having a functional court?

  18. James Pearce says:

    Also

    @Doug Mataconis:

    If you want to pretend that Senate Democrats wouldn’t act in the same blatantly partisan manner under the circumstances I outlined above that’s your choice.

    This is absolutely true, but I’d add the caveat that Democrats would be less bold about it, and so the effort would escape notice in some quarters. Democrats also probably wouldn’t face the primary challenges that Republicans face.

    Both sides do it, but differently.

  19. Slugger,

    I have not said that the position that the Republicans are taking is “justified.” I have merely pointed out the reality that judicial nominations are, in the end, as entirely political matters as everything else that happens on Capitol Hill, entirely political matters. The Constitution does not require the Senate to hold a hearing on a nomination, nor give it a floor vote. It also doesn’t provide any time limit within which the Senate must act. If it did, then one could say that they are committing a “misdeed.” They are not, they are making a political calculation, and in the end the voters will determine whether they have made the right or the wrong choice.

    I’m not endorsing their actions, I am merely analyzing those actions based on reality rather than pretending that politics doesn’t exist.

  20. C. Clavin says:

    @Doug Mataconis:
    Wow. Just wow. The denial is strong.

  21. Tillman says:

    The best legitimate defense for Senate Republican behavior in this is, “In my fantasy counterfactual Democrats would do it too.”

  22. Moosebreath says:

    @Tillman:

    “The best legitimate defense for Senate Republican behavior in this is, “In my fantasy counterfactual Democrats would do it too.””

    Exactly. And when countered with evidence that Democrats were prepared to hold hearings and consider moderate nominees, they simply repeat their fantasy.

    And the so-called liberal media never calls them on it, so why shouldn’t they?

  23. HavardLaw92,

    In other words, I don’t agree with you, therefore it’s a “facade.”

    If you think judicial nominations aren’t political then you’re either naive or haven’t paid attention to the past three decades or more of American history. I can agree that this isn’t a good thing, but it is what it is an it isn’t going to change.

  24. rachel says:

    @Doug Mataconis:

    Schumer’s and Biden’s words [selectively quoted to fit my argument] speak for themselves.

    FTFY.

  25. jib says:

    Does anyone understand the logic of doing NOTHING? Why is this preferred to just a good ‘Borking’? Hold hearings, express grave doubts, maybe gen something or another up, and vote the nominee down.

    Yes, yes, yes, no matter how you look at, no way they approve Obama nominee before the election by why it this preferred?

    It is it so if the Dems take back the Senate (very real chance) they can rush through and approve what is surely going to be a much more moderate justice than the one Prez Hillary and the Dems will approve in 2017? If thats the plan would not you leave yourself some outs now, have some hearings and delay the vote until after the election?

  26. @jib:

    I don’t get why they don’t hold hearings either, but that is the path they have chosen.

  27. jib says:

    @Doug Mataconis: Its like they said ‘what is the worst possible way we could do this thing that everyone knows we were going to do anyway’. I have yet to find anyone who can explain it.

  28. David M says:

    Regardless of whether some Senator said something mildly hypocritical in the past, the Democrats have never done anything comparable. This is just another GOP attempt to destroy the Constitution.

  29. Jc says:

    . The words of Senators Schumer and Biden, along with the actions of Senate Democrats regarding more than a dozen Bush judicial appointees during the early 2000s, say otherwise.

    Uh, GOP did that to Clinton appointees as well. Words are not the same as actions. If you hold politicians to things they have said that they never acted on, well then that’s your prerogative, but I don’t think you are being serious. The fact is that what the GOP is about to do is pretty much in modern day unprecedented and is pure spite

  30. Tillman says:

    @Doug Mataconis: @jib: One possibility is they’re afraid Obama will nominate someone utterly agreeable, and their rejection of that nominee will come off badly. I believe they overestimate how much people pay attention to Supreme Court hearings in that case. This makes no sense if you take the theory that they’re feeding the base by rejecting any hearings as true because it seems like the base would be equally pleased with thumping Obama’s nose with failures to get nominees through the Senate.

    Really, it’s remarkable message discipline is what it is. McConnell’s trying to shape a narrative: An Interested Party quoted the sections of the post that are relevant here. The stance McConnell’s tried to present has been that he ultimately has the agreeable, reasonable position in all things, and the administration is constantly tip-toeing to tyranny. The end result of this is that every significant issue facing the nation requires the next president to work with Congress to solve. He said it with regard to Planned Parenthood funding:

    “I would remind all of your viewers, the way you make a law in this country, the Congress has to pass it, and the president has to sign it. The president’s made it very clear he’s not going to sign any bill that includes defunding of Planned Parenthood so that’s another issue that awaits a new president hopefully with a different point of view.”

    He said it with regard to immigration reform:

    “The concern that we expressed about that I think was validated by the fact that he is currently under a court order not to go forward with what he decided to do. And so the atmosphere for dealing with that issue in the wake of what he did is not appropriate to get the kind of immigration reform that we probably need to address,” he said.

    McConnell did sound a positive note about the potential for immigration reform next Congress.

    “Hopefully in the next Congress we’ll do it, where we’ll have for sure a different president,” he said.

    Filling a vacancy on the Supreme Court? Same thing. Next president will solve it. It’s McConnell’s fallback from making Obama a one-term president.

  31. Liberal Capitalist says:

    Looks like this discussion is not surprisingly lining up along partisan lines.

    HOWEVER… what does the constitution say?

    Let’s fire up Article 2, clause 2 and take a look…

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    So, the job of the Senate is to “Advise” — which is a very nice way of saying no… Or to “Consent” in the nomination, which confirms the appointment.

    This is their job. One or the other.

    To do NEITHER, and to state that they will not have a hearing, or meet with the suggested candidate is a dereliction of their constitutionally appointed duty. That is not a contitutionallty provided option.

    Imeachemnt anyone? Or how about just saying that if the Senate chooses to say that they will not have a hearing, then (by definition of them shirking their duty) they MUST be de facto in recess.

  32. An Interested Party says:

    The best legitimate defense for Senate Republican behavior in this is, “In my fantasy counterfactual Democrats would do it too.”

    Certainly that is the dubious idea that Doug is pushing…

  33. Pch101 says:

    @Doug Mataconis:

    The Constitution does not require the Senate to hold a hearing on a nomination, nor give it a floor vote.

    But it does mandate “advice and consent” and there are obvious negative implications if the Senate insists on boycotting the process (i.e. the judiciary required per Article 3 would eventually not exist) that should make it clear that advice and consent is a requirement, not just kind of a nifty thing that they can do every once in a while if they feel like getting around to it.

    And we can be pretty sure that this is not what was intended because we have the Federalist to explain the motivations for having this process. Compare what the Senate Republicans are doing now to what Hamilton described, and you tell me that those are consistent with each other.

    This whole exercise serves to demonstrate how lousy this concept of constitutional law really is. Those who don’t care for what it is obvious simply go into cognitive dissonance mode, justifying it on the basis that no one has to do anything because it wasn’t spelled out in a document that was never intended to spell everything out.

    In the real world, we have to write contracts with very specific language because some people are slippery and untrustworthy. Hamilton should have been a lot more suspicious and a lot more specific.

  34. Tony W says:

    @Doug Mataconis:

    If you think judicial nominations aren’t political then you’re either naive or haven’t paid attention

    This is a straw man. Of course judicial nominations are political.

    Only Republicans think that’s a reasonable excuse for burning Washington DC into ash every time something is required of them. I know they are hell bent on proving government doesn’t work, but the sabotage is pretty blatant at this point.

  35. HIlarious says:

    @Doug Mataconis:

    I can agree that this isn’t a good thing, but it is what it is an it isn’t going to change.

    Wow, now counselor you’re starting to sound like an NBA point guard in a post game interview.

    Maybe you should take a blogging break. Perhaps get back into your legal practice.

  36. LaMont says:

    If the GOP follow through with this you can bet just as sure as my name is LaMont that history will look back at this moment as a stain in American history. This will literally symbolize the unprecented disrespect this Presisdent, the nation’s first black President, had to endure just to do his job. There is no doubt in my mind that some of these same Republicans will regret their behavior in their twilight years as history always seems to place matters in its proper perspective. These conservatives are clearly on the wrong side of history yet it amazes me just how clueless they are.

  37. rodney dill says:

    The furthest extrapolation of this is that judicial nominations, hearings, and confirmations will only occur when the party of the President and Senate majority are the same.

  38. dmhlt says:

    Well, Doug, since you’re always using the “Both Sides Do It” meme, how about some equal time for your side?

    REAGAN:
    “The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect … for the Senate to get to work and act.”

    https://reaganlibrary.archives.gov/archives/speeches/1988/011988a.htm

    REAGAN:
    Every day that passes with the Supreme Court below full strength impairs the people’s business in that crucially important body.

    http://www.presidency.ucsb.edu/ws/?pid=33695

    Mitch McConnell wrote in a 1970-71 law journal article that politics should play no role in Senate confirmations of Supreme Court appointments and that the Senate should defer to the president.
    “The president is presumably elected by the people to carry out a program and altering the ideological directions of the court would seem to be a perfectly legitimate part of a presidential platform,” wrote McConnell.

    http://www.courier-journal.com/story/news/politics/mitch-mcconnell/2016/02/17/young-mcconnell-high-court-presidents-role/80495928/#

  39. Rafer Janders says:

    Let Obama send the Senate a nominee, and if that nominee does not receive a hearing, have the president then declare that that nominee is thereby confirmed and seated on the Court, on the grounds that the Senate has failed to fulfill its advise and consent function and thereby violated the separation of powers by arrogating the executive function to itself.

    As I’m sure Doug will agree, hey, it’s just politics, and as long as there’s nothing in the Constitution explicitly forbidding this, it’s OK. If the president can get away with it, he can do it.

  40. Pete S says:

    @Doug Mataconis: As long as they are “scared” of ALL their constituents, not just the primary voters of their own party…

  41. Tyrell says:

    Here is what the president should do: make a deal that they can’t refuse. Nominate someone who is so well respected and popular that no one would dare vote against them.

  42. anjin-san says:

    @HarvardLaw92:

    having a functional court?

    Conservatives want a functional court. They just believe that the function of the court should be to provide their side with an endless series of wins.

  43. al-Ameda says:

    @Tyrell:

    Here is what the president should do: make a deal that they can’t refuse. Nominate someone who is so well respected and popular that no one would dare vote against them.

    You mean like Virginia Thomas?
    Seriously, who is that person?
    The public is getting what it deserves – voters elected the Republican controlled congress and they bought into the zero-sum game Republicans are running on Capitol Hill.

  44. An Interested Party says:

    Let Obama send the Senate a nominee, and if that nominee does not receive a hearing, have the president then declare that that nominee is thereby confirmed and seated on the Court, on the grounds that the Senate has failed to fulfill its advise and consent function and thereby violated the separation of powers by arrogating the executive function to itself.

    Sadly, Obama is probably too much of a moderate to do something like that, but it sure would be fun if he did…what would Republicans do? Take him to court?

  45. Tyrell says:

    @al-Ameda: I am working on it and will get back to you.

  46. David M says:

    @rodney dill:

    The furthest extrapolation of this is that judicial nominations, hearings, and confirmations will only occur when the party of the President and Senate majority are the same party.

    This is why I have a problem with #NoHearingsNoVotes. It is legal, but it leads down a dangerous path for the country.

  47. David M says:

    Contrast the GOP temper tantrum with Obama on the nomination at ScotusBlog:

    A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

    Regardless of the outcome of the election later this year, the country will have lost something great when Obama leaves office.

  48. rodney dill says:

    @Tyrell:

    Here is what the president should do: make a deal that they can’t refuse. Nominate someone who is so well respected and popular that no one would dare vote against them.

    Then after the Senate starts to consider that person, showing that they are willing to entertain an Obama appointee, withdraw that nomination and submit his real liberal nominee.

  49. LC says:

    Doug — you are embarrassing yourself more than usual.

    HavardLaw92,

    In other words, I don’t agree with you, therefore it’s a “facade.”

    It’s not that you don’t agree. It’s that you straight up refuse to engage with the full quotes you keep excerpting, which change the meaning SUBSTANTIALLY.

    Seriously man, take a vacation.

  50. Rafer Janders says:

    @LC:

    It’s that you straight up refuse to engage with the full quotes you keep excerpting, which change the meaning SUBSTANTIALLY.

    There’s a much simpler word for when someone straight up refuses to engage with the full quotes he keeps excerpting, which change the meaning SUBSTANTIALLY…..