[James] 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.
I agree 100% that the Constitution does not require an up-or-down vote. But does you share my view that text of the Advice and Consent clause suggests at least a duty on the part of the Senate to help "vet" a candidate, ideally through an open hearing process for the sake of transparency?
I say this because I think a hearing on any Obama nominee could and would be helpful to the American people as they consider the future of SCOTUS while voting in Nov. I presume the D Prez nominee will be supportive of whomever Obama nominates (and may even pledge to renominate him/her), while the R Prez nominee will be opposed. I wonder if you share my sense that a public hearing in the Senate might help voters have a real sense of whether they want this kind of person on the Court or want someone else.
The "advice" part has been pretty much dormant from the beginning, and breathing life into it would require cooperation of the White House and the Senate. I'm not holding my breath.
I doubt that hearings would be all that useful, based on experience.
Doug --
You ask if I share your "view that text of the Advice and Consent clause suggests at least a duty on the part of the Senate to help 'vet' a candidate, ideally through an open hearing process for the sake of transparency?"
As Justice Scalia once noted (I forget where), the Constitution says what it says, and doesn't say what it doesn't say.
What it "says" doesn't mean what it "suggests," so I don't know what a constitutional "suggestion" is.
The Constitution says zero about HOW the Senate may give, or decide not to give, its advice and consent. I thus conclude that, so far as the Framers were concerned, Congress could elect to do nothing, or hold months of hearings, or anything in between.
If and when the Senate decides to act -- again, a subject upon which the Constitution is silent -- recent practice is that there will be days or maybe a couple of weeks of public hearings. Which is fine with me, if that's what the Senate wants to do, although very few people watch them.
I think the McConnell stance of letting the voters have a say in this in the election eight and a half months from now is the best way -- if a point be made of it -- to focus citizens' attention on the importance of the Court.
But I want to be clear about what's actually going on with this. Democrats want to start building momentum toward confirming Obama's choice. They know that insistently demanding and then holding hearings is a good way to start that momentum, to set up the line, "Hey, look, we now know all about this nominee, so let's go ahead with a vote!"
This is not just about "educating the public." A serious man like you knows that the real job here is to replace Scalia with a liberal in order to change the direction of the law. Everything being said and "suggested" now is in the service of getting that done BEFORE a President Cruz or a President Rubio gets the chance to nominate someone much closer to Scalia's view of law than anyone Obama will pick.
One of the things I like about you, Doug, is that you keep your eye on the prize. So do I.
Douglas stated: " But does you share my view that text of the Advice and Consent clause suggests at least a duty on the part of the Senate to help "vet" a candidate, ideally through an open hearing process for the sake of transparency?"
If the founders meant to "suggest" any such thing, they would have gone with the Madison model, where the Senate was FORCED to vet and give a vote, or the person was automatically confirmed.
That they chose the "advise and consent" model over it says everything we need to know.
I would also bring another part of the article to your attention, that "advise and consent" was modeled after the Massachusetts State Constitution. Although you may wish otherwise, "up and down" votes were not always given by the Privy Council to a Governor's appointments.
To clarify, Bill, I largely agree that it would be consistent with the Constitution for the Senate "to do nothing, or hold months of hearings, or anything in between." That said, I wonder if you'd be willing to agree with me that, generally speaking, the country and its people would all be better served if the Senate held some hearings rather than to do nothing.
I say this because, whether or not the Senate were to actually vote on any nominee, I genuinely believe that having hearings about the nominee will help to "focus citizens' attention on the importance of the Court." (I suppose the Senate could also have hearings between now and November on the fact that the next Prez might well have 2 or 3 more openings to fill.)
For the record, I also want to be perfectly clear, too: I surmise that some on the GOP side think/fear that process/transparency in the form of Senate hearings would harm their political goals/interests. That may (or may not) be true, but I think process/transparency in government functioning is a good in and of itself no matter which side of the aisle ends up benefiting from it.
lol
Doug,
You crack me up. You always find a way to portray your "side" as "The Guardians of Transparency" and the "Modern Day Diogenes" while the other side only cares about their "political goals/interests."
You are a great lawyer for sure.
We both know that "transparency" when it comes to these hearings is a farce.
How much transparency was there when Sotomayor was asked by Leahy whether she found the the right to bear arms guaranteed by the 2nd Amendment and she replied, "It is?"
It was a lie and everyone who knows her knew it was a lie.
Kagan, the thoroughly dishonest jurist who manipulated data in order to support her argument for partial birth abortion is no better.
There was no transparency and Obama would NEVER appoint someone who was so stupid to be "transparent" during the hearings.
Level with us. You only want to use the "transparency" as kabuki. It is a tactic to obfuscate the truth, not find it.
You know that the appointee, whoever it is, will be smart enough to hide his or her own actual beliefs.
Cue the lawyerly response...
Doug --
TarlsQtr correctly gives you credit for being an astute lawyer. I would add to that you are an astute political thinker as well.
I believe I've already answered your questions here, so I'll repeat what I said:
Let's be clear about what's actually going on with this. Democrats want to start building momentum toward confirming Obama's choice. They know that insistently demanding and then holding hearings is a good way to start that momentum, to set up the line, "Hey, look, we now know all about this nominee, so let's go ahead with a vote! Delay after such thorough hearings is just obstructionism!"
This is not just about "educating the public." A serious man like you knows that the real job here is to replace Scalia with a liberal in order to change the direction of the law. Everything being said and "suggested" now is in the service of getting that done BEFORE a President Cruz or a President Rubio gets the chance to nominate someone much closer to Scalia's view of law than anyone Obama will pick.
No hearings, period. Zip. Nada. Not even if the nominee is you. Or me.
If the nominee is very well qualified, and has previously received overwhelmingl bipartisan support during a judicial nomination process, the moderate GOPers will prevail (over the hardline GOPers to their right) and there will be a hearing.
Indeed, the "no hearing" mantra is already beginning to fall on deaf ears of some GOP moderates.
In the end: Hearing will be held. But very, very unlikely that nominee will be confirmed. And, depending upon who the nominee is and how the hearing is conducted (and who has the most persuasive spin-team), one party might benefit politically.
I would inquire how you know what is going to happen in the future, but it would be pointless.
You have had more than your chance to add your two cents on this subject, and have become tiresome and repetitive. I will ask that you move on to a different topic.
paul, I think some history is in order--back when Jimmy Carter was president, the GOP acquiesced to his judicial nominees after he had been destroyed in a landslide. Then the Dems started to jam Reagan nominees and Bush 41 nominees. The GOP stuck it to Clinton (understandably, given the 'rats' treatment of GOP nominees AND given the abysmal quality of Clinton nominees--Judge Clay, Paez, Daughtrey, Ronnie White, Berzon, Moore, Chatigny and all the other nominees). Then the 'rats, including Obama and Biden raised judicial obstructionism to an art form. In light of that history, why in the world would the GOP even waste its time with Obama's nominees? Sotomayor, a woman who linked ethnicity with the quality of judicial decisionmaking, NEVER should have been nominated, let alone confirmed.
The judicial wars were started by the 'rats and escalated by the 'rats. Time for the chickens to come home to roost.
Why the vitriol directed at Paul, Bill? I went back and read the comments on prior posts, and nothing he wrote has been outrageous, nor do I think his comments were merely "repetitive and tiresome." Ad hominem responses don't seem warranted, IMO. It seems he merely has a different viewpoint from yours.
I used to find this blog informative, including the comments. Not so much anymore, as it seems to have devolved into something far less intellectually challenging that I'd expect to see from more obviously partisan sources, like Breitbart or Drudge or DailyKos. Pity.
If a commenter wants to make a point, fine, that's what the comments section is for.
If he wants to make the same point a second or a third time, no big problem there, either.
Four, five and six suggest lack of useful discipline.
To say that beyond half a dozen is tiresome and repetitive seems to me to be just telling the truth. With respect, I don't think that's "vitriol."
Your comment, Notaablogger, usefully captured my lasted thinking about this blog with some refinement: I still learn new and important insights from Kent's posts, and I learn with the hard-right/quasi-establishment is developing as law reform talking points from Bill's posts.
Doug --
If you want to learn Establishment thinking -- for example, about sentencing "reform" -- you should read your own blog with its many, many entries about John Conryn, Paul Ryan, Bob Goodlatte, Mike Lee, the Sentencing Commission, the Attorney General, the last Attorney General and, of course, Barack Obama.
Talk about the Establishment!!!