As many know, Donald Trump has released a list of 11 people he might nominate to the Supreme Court if he is elected. While I don’t know all of the people on the list, many of them are quite first rate and I have not heard any criticisms of people on the list that seem especially troubling. Thus, it is reassuring to many on the Right, who are skeptical of a Trump presidency, that he seems to be willing to nominate people who are supported by more conventional Republicans. Although the list surprised many people, it makes perfect sense. Donald Trump is…
At the University of San Diego Law School, the American Constitution Society recently held a panel discussion on the issues raised by the Justice Scalia vacancy. The panel included Don Dripps, Larry Alexander (who was plagued by laryngitis), and myself.
I started off arguing that the original meaning of the Constitution does not require the Senate to act on any nomination made by President Obama. The language of the Advice and Consent provision certainly does not support it. The text of the provision states: “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and other Officers of the United States.” Obviously, this merely requires that a Supreme Court Justice be confirmed before being appointed. It does not require that the Senate act in response to a nomination.
I also argued that this reading of the provision accords with similar parts of the Constitution. For example, when the House of Representatives passes a bill, there is no obligation for the Senate to vote on or even to consider that bill. While the Constitution states that the President may “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient,” no one believes that Congress must respond to these recommendations. In fact, the Constitution does occasionally specify an obligation to respond and consequences from failing to respond. In the veto provision, the President is given 10 days to approve or veto a bill, and if he fails to act, the bill is treated as passed (unless the Congress is not in session). A comparison of this provision with the Constitution’s silence about any Senate’s obligation to respond to a nomination is instructive. After making this point at the panel discussion, I was pleased to see that Vik Amar made the same point in print.
In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment.
Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.
2. Paper trails are an asset, not a disqualification.