Advice and Consent of the Senate

So now that Amy Coney Barrett has been confirmed and sworn in as a new Associate Justice of the Supreme Court, many of the usual suspects are griping once again about how “unfair” and “hypocritical” it is that the Senate didn’t “advise and consent” on Obama’s nomination of Garland to the seat vacated by the death of Scalia. It was their job, these folk say, and they didn’t do it.

“Advice and consent of the Senate” is not under Article 1 of the Constitution, the duties, powers, and responsibilities of Congress. It’s under Article 2, the duties, powers, and responsibilities of the President. It’s not something the Senate has to give. It’s something the President has to get. It’s up to the President to nominate candidates acceptable to the Senate.

If the candidates are not acceptable to the Senate, that’s on the President. Now, a President might decide it’s better to leave a seat vacant rather than nominate someone acceptable to the Senate if he (or she, as the case may come) is truly at odds with what the Senate will want and hope that a future Senate will instead be more amenable (or he/she will be out of office and it will no longer be his/her problem). That’s a valid choice but, again, the President’s responsibility. Because it’s the President’s job to get the advice and consent of the Senate, not the Senate’s to blindly give it. Article 2, not Article 1.

When Mitch McConnell talked about “election year” when it came to filling, or not, the Supreme Court seat left vacant by Scalia’s death, he was being diplomatic when the real answer was “there is simply no way in Hell that this President will nominate someone acceptable to this Senate. We know from his past history that he won’t even consider the other side’s views when they run contrary to what he wants. So there’s no point in even wasting time on it.” He could have said that but instead he gave a face-saving answer for the lame duck President who was on his way out the door. He was simply being a lot more polite than I would have been (which is one of the reasons I can never go into politics).

Obama, nearing the end of his second term, was going to be leaving office. That wasn’t even in question. And given his history the odds of his proposing someone at all “moderate” (as anyone but a far leftist would view it) were slim to none. So, better to wait, for the next President. That was, in fact, a gamble. Polls were favoring Hillary (and continued to do so right up until election night). Nobody who knew anything about her would expect her to nominate someone less left-wing than Obama’s pick. And while there was precedent for leaving a Supreme Court seat vacant for up to five years because the Senate was unhappy with the President’s picks, as things turned out it would be not one, but three. It simply would have been unrealistic to expect the Senate to have the courage to say “No” to folk who want to reinterpret the Constitution in ways never intended by the folk who wrote it or simply outright ignore it to the extent of leaving three seats vacant (seat vacated by Scalia’s death, seat vacated by Kennedy’s retirement, and seat vacated by Ginsburg’s death).

On the other hand, if the Republican Candidate won–which as it turned out did happen–then Scalia’s replacement, and those that followed, could be filled by folk who would take a more originalist view of the Constitution. The new justice (Justices as it turned out) would rule more closely according to the law, as written, and the Constitution, as written as opposed to the political fads of the moment.

Of course, the Left gets even more outraged by that idea. “Originalist” is “extremist” to them.

The question is: how did the position that a legal document means what it meant, using the public meaning of the words within it as it was written, become an “extremist position”? The Constitution says what it says and it does not say what it does not say. You cannot legitimately change it by simply declaring the words to mean something other than their public meaning at the time of its signing and ratification. You certainly can’t do that with any other contracts. Would it need to change as situations change? Of course. And there is a mechanism within it to do so. Contracts can always be renegotiated so long as all parties agree to the new terms.

And here we get to the real complaint. It’s not “election year”. It’s not “the Biden rule” (which was never actually a rule). Those are just rhetoric, excuses, behind the real reason they object to Barret’s nomination. It’s that they want someone who will “creatively” interpret law and the Constitution to give them what they want, no matter how tortuously they have to twist language to do so.

And they will use any excuse they can dream up to do so.

3 thoughts on “Advice and Consent of the Senate”

  1. That was my biggest frustration with McConnell, was his dissembling when he could have just said “we don’t like the nominee and we aren’t going to hold hearings on him”. The left would have screamed just as much and with the same results, except for the part about accusing him of hypocrisy four years later. But then they were going accuse him of something, so maybe it just doesn’t matter.

    In the meantime, did you see where as soon as they finished voting on Barrett he filed cloture motions on two more judges. Cocaine Mitch, baby!


    1. But then they were going accuse him of something, so maybe it just doesn’t matter.

      I fall in this camp.

      Especially since he did, at various points, point out that the Senate was not held by the same party as the President and that it was thus not unreasonable to wait until the voters had their say.
      The voters had already decided that they were unhappy with the previous matching-the-president option, after all.


    2. It’s strange, but finding the original quote– rather than folks’ interpretations of the McConnell rule– is a bit difficult. This has teh quote, and context:

      In explaining his position at his very first press conference on the Scalia vacancy in 2016, McConnell emphasized this opposite-party configuration:

      You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year….

      We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.


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