The recent passing of Supreme Court Justice Antonin Scalia has fostered understandable controversy about his replacement. Republicans have been vocal in their resistance to allowing President Obama to select a successor in this, the last year of his administration. Much attention has been given to the Constitutional requirement that a Supreme Court nomination be confirmed only by the (majority) vote of the Senate. That aspect of the process is the “consent” of the Senate, but there is another Constitutional factor (relating to the Senate) that has received no media attention. Here is the text of the second paragraph of Article II Section 2 of the United States Constitution describing certain powers of the President (with emphasis added):
“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.”
The Constitutional factor missing from the public discourse to date is the “advice” of the Senate. When was the last time a President asked the “advice” of the Senate respecting a Supreme Court nomination? I can think of no such case during my career as a practicing lawyer. Rather, our Presidents are in the habit of nominating candidates of their choosing, and the Senate votes up or down or (in other cases) stalls the process until a controversial or unpopular nomination is withdrawn.
The SCOTUS vacancy is no trifling matter. President Obama has declared that he will fulfill his Constitutional duty by nominating a candidate. But will he fulfill his other Constitutional duty to seek the “advice” of the Senate? I suspect that he will not and that the resulting recalcitrance of the Senate to consider the nominee will prove to be a national embarrassment. I would like to see the President follow his duty to seek “advice,” and I would like to see the Senate (and its Judiciary Committee) follow its duty to give fair and timely consideration to the President’s nomination. There is no Constitutional exception for nominations in the final year of a President’s term. However, a nomination determined upon “advice” of the Senate is much more likely to receive Senate “consent.” Let the “checks and balances” of the Constitution work. Justice Scalia (the “originalist”) would want it that way.
Addendum: Here are some fun facts about the SCOTUS, established with remarkable brevity in Article III of the Constitution. The office of Chief Justice is not even mentioned in Article III but has a reference in Article I respecting an impeachment trial (in the Senate) of the President. You may recall former Chief Justice William Rehnquist presiding over the (absurd) impeachment trial of Bill Clinton. There is no Constitutional requirement of nine Justices, though such an odd number is more rational than an even number when the goal is to have controversies decided. President Franklin Roosevelt threatened his recalcitrant Supreme Court with a flooding of additional justices.
If President Obama values a “balanced” Supreme Court reflecting national demographics, he should consider a Protestant, man or woman. Until her retirement in 2006 Sandra Day O’Connor was the only female Protestant to serve on the Supreme Court. Remarkably, there has been no Protestant (male or female) on the Supreme Court since the 2010 retirement of John Paul Stevens.
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