The Grave Risks of the Senate Republicans’ Stated Refusal to Process any Supreme Court Nominee President Obama Sends Them

With the president and the Senate staking out their relative positions concerning the Supreme Court vacancy created by Antonin Scalia’s death, Americans need to understand the basic ground rules of the judicial appointments game. In the space below, in the first of what likely will be a series of columns, I address a few foundational matters.

Let us start with the question of whether the Senate would be derelict in its constitutional “duty” if it were to follow through with the promise the Republican leaders have made not to hold hearings or votes on in any other way process any nomination President Obama makes prior to the November presidential election. Some analysts have argued that the Senate has a “duty” to hold hearings and vote on a President’s nominee.

It is hard to see where such a legal duty comes from. The text of the Constitution certainly does not use any language suggesting the Senate has a legal obligation to do anything; instead, Article II, Section 2, says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various high-level executive and judicial officers. This simply means that the president may not appoint a justice without the Senate’s “consent” or approval, not that the Senate must express its lack of consent in any particular way or along any particular timeline. (The clause does use the word “shall,” but that sometimes mandatory verb applies to the subject of the sentence—the president—and not to the Senate. And since a president can always decline to issue a commission to a justice, it is not even clear that the president is under any mandatory legal duties here.)

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

None of this means, however—and this is the second key point—that the Senate would be acting responsibly in adamantly refusing to consider anyone the president nominates, no matter how qualified and how appealing to a broad swath of the Senate a nominee might be. Much might depend on the particular reasons for the Senate’s inactions. Perhaps the most innocent explanation for the Senate leadership having taken an absolutist position before seeing President Obama’s nominee stems from a desire to let the ultimate nominee (whoever s/he is) know that the lack of consent is not personal, but based on some belief that the prerogative to nominate really does belong to the next president after the electorate has weighed in.

But even if this were the actual motive, and even if that position were a principled one (questions on which I express no view here), there is real risk of reprisal by the Democrats. As I intimated in the introduction, moves in this appointments game can generate countermoves. Indeed, some Republicans themselves have been defending their (current) position of inaction by reference to moves (or statements) that Democratic senators have made in the past. In particular, Republicans point to the Democratic filibuster of President George W. Bush’s nomination of Miguel Estrada to the United States Court of Appeals, as well as to the fact that that President Obama, when he was a Senator in 2006, attempted to filibuster the nomination of Justice Alito to the Court. Some Republicans are also quick to remind everyone of then-Senator Joe Biden’s statement on the Senate floor in late June 1992 to the effect that then-President Bush should not expect the Senate to process any Supreme Court nominee should one of the sitting justices resign before the “political campaign process” was over.

But the current Senate’s hard line might not be a prudent and appropriate response to these past moves by Democrats. Good players in any game need to calibrate their countermoves carefully to avoid putting themselves in more vulnerable situations themselves later. Why might the current Senate’s stance be an overreaction? Because attention to detail shows that the three prior episodes just mentioned were somewhat different from the current situation. Miguel Estrada was nominated not to the Supreme Court, but to a lower court, he was given a hearing, and the real world effects of and public perceptions about a Senate filibuster in today’s setting (where leaving the Court shorthanded means some important cases can’t be meaningfully resolved) are quite different. As for Senator Obama’s attempted filibuster, his actions a decade ago certainly make it harder for him to complain now, but remember that (once again) hearings were held, and that the attempted filibuster was unsuccessful; the Democratic party in the Senate did give Justice Alito a floor vote that led to Alito’s confirmation (almost 20 Democratic Senators who voted against Alito on the floor voted against the filibuster). And Senator Biden’s statements referred to a very different situation from today’s—Biden was speaking in June, not February, and was explicitly referring to a vacancy created by resignation, rather than by death. Why are the two different? Because a resignation in the summer of a presidential election year is itself likely to be motivated by ideology—an attempt to give a like-minded president a chance to keep that Court seat in a particular ideological camp. Responding to a partisan-manufactured vacancy with partisan stalling is worlds apart from partisan refusal to deal with a vacancy that comes about not through political calculation but instead by mortality.

So if the Republicans adhere to their stance of inaction this summer, and the Democrats feel such a move was overly sharp-elbowed, what might the Democrats themselves do? For starters, they will appeal to the voters this fall and try to use the Senate’s stance against Republicans in the Senate races as well as the presidential campaign. An unfairly thwarted nominee might be able to energize key elements of the Democrats’ electoral coalition, especially swing states.

But beyond this somewhat ordinary and (in the big picture) tame countermove, the Democrats could respond even more extremely. Senate Republicans should remember that a compromise candidate today may be far better for them than the justice they may get stuck with if the November election does not break their way. As my brother Akhil Amar and I wrote in the LA Times last week, imagine that Hillary Clinton wins and the Democrats also regain the Senate. Then she could likely get her first-choice nominee confirmed; she would not have to compromise nearly as much as Obama might be willing to right now. Indeed, we commented, Republicans who hated the very thought of four more years of President Obama back in 2012 should ask themselves how they would feel about 40 more years of Justice Obama in the advent of a Clinton victory. (She was recently asked whether ex-President Obama might make a good justice, and seemed quite smitten with the idea.)

We went on to point out that even if the Republicans were to win the White House in November, they could still lose the Senate. And if that were to happen, the new Democrat-controlled Senate would take office in early January, weeks before Obama leaves the White House. During that overlap, the new majority of Democratic Senators could undo the filibuster rule by a simple majority vote (the so-called nuclear option), and then President Obama could withdraw his intended compromise candidate and push through his first-choice candidate (perhaps Hillary Clinton!), who would likely be less acceptable to the current Republican Senate. Such a move by the Democrats in the Senate might seem aggressive, but so too is not giving a President’s nominee to the Court a fair shake and a floor vote. What goes around comes around.

Finally, consider a scenario that might be called the “hydrogen option”: Democrats win the Senate even as they lose the White House, and they prevail upon Justices Ginsburg and Breyer to resign in early January, and President Obama and the new Senate push through three new Justices who, along with Justices Sotomayor and Kagan, put into place a 5-Justice bloc that could be expected to embrace a more liberal judicial philosophy that would reign for a few decades.

It should be clear from my tone that I very much hope that the judicial appointment process does not escalate into these kinds of extreme moves and countermoves. At a time when the Court is already suffering from the (mis)impression that its operations are no different from the partisan politics that has crippled the elected branches of the federal government, we would (notwithstanding the motif I have used in this essay) do well to remember that this is not an ordinary game—by calling appointments a “game,” I do not intend to diminish the principals and principles involved, but rather to highlight the range of legally permissible but potentially costly moves and countermoves that give the appointments process a coherent structure—and that the ones who stand to lose the most are not the players, but We the People.