Abstract

[After Justice Antonin Scalia's death in 2016 and i]n response to the Senate Republican leadership's stated intention to refuse to consider any nominee to replace Justice Scalia, some began to argue that the Senate has a constitutional obligation to act on a Supreme Court nomination.

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but "clear." This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: "The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees." The argument was wrong then, and it is wrong now.

Senator McConnell's announcement of across-the-board opposition to any Supreme Court nominee undoubtedly escalated partisan conflict over judicial confirmations. There are many powerful arguments that such reflexive opposition is unwise and imprudent, and threatens to further undermine the functioning and independence of the federal judiciary. These arguments do not, however, establish that refusal to consider the nomination of Judge Merrick Garland to replace Justice Scalia is unconstitutional.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

Fall 2016

Publication Information

24 George Mason Law Review 15-33 (2016)

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