The President has now nominated Judge Merrick Garland to replace Justice Scalia on the Supreme Court. Judge Garland currently serves on the United States Court of Appeals for the D.C. Circuit. He went to Harvard Law and worked at a major law firm (hooray for diversity!). He has a distinguished background that includes clerking for Justice Brennan and, importantly to me, service as a federal prosecutor and as a high-ranking official at the Justice Department. He is widely liked and respected, and in any other political environment, would almost surely be confirmed to the Court. Judge Garland seems like a good and decent man, and a conscientious judge. And his qualifications are not subject to question.
But I continue to believe that his confirmation will not happen this year, at least not before November. And, as I have said elsewhere, I am confident that the Constitution requires nothing different. Some on the political Left are insisting to Senators, “do your job,” and that the Senate fulfill its “constitutional duty” by giving Judge Garland a hearing and a vote. That may, of course, be the right thing to do, but it is not a “duty” imposed by the Constitution. The Appointments Clause simply requires “advice and consent” of the Senate. Until the Senate affirmatively gives consent – either by a roll call vote or by approval of a unanimous consent request – then, by definition, it has not consented. Therefore, even the refusal to take a vote constitutes Senate action: non-consent. Anything other than affirmative consent is non-consent, and that is unquestionably within the power of the Senate. The Constitution does not specify how or when the Senate must give consent or non-consent.
The Republicans have lately been running the following argument: the People should have a say in who fills this seat on the Court. This is another way of saying, “let’s wait for the election returns.” I would run a different argument: the People already had their say. Yes, they elected President Obama as the person who would get to nominate judges until January 20, 2017, but they also said that they want Republicans to control the Senate and determine the rules for giving consent, or non-consent, with respect to those nominees. If the majority of current Senators, duly elected by the People, decide that the Court needs a Justice more like Justice Scalia than Judge Garland would be, then refusing consent – in any way – is consistent with what the People chose in the 2014 midterm elections.
That said, Judge Garland might be the best pick a Republican could expect from a Democratic President. And if Hillary Clinton is elected, Republicans will not be able to refuse a hearing or vote based on the kinds of arguments they are making now. Clinton will be in a far stronger position to nominate someone to Garland’s left. The better Republican strategy, then, may be this: hold Judge Garland’s nomination until November; then if Clinton wins, confirm Garland immediately during a lame-duck session.
While the act of judging should be apolitical and non-partisan, the Constitution creates a framework for judicial appointments that is political. So let’s let the political branches fight this one out, and stop pretending that the Constitution answers questions that it does not answer. As Justice Scalia was fond of saying, the Constitution doesn’t answer every problem of American government or provide redress for every grievance.