by Jamal Greene, vice dean and professor of law, Columbia Law School. Professor Greene teaches and writes in the areas of U.S. constitutional law and theory, federal courts, and comparative constitutional law.
* This post was excerpted from Professor Greene’s statement to the Senate Democratic Steering and Outreach Committee.
The duty of the Senate in regards to its constitutionally enumerated functions is measured by whether its exercise of those functions serves the Constitution’s purposes and is consistent with well-established institutional practices. By that measure, the Senate has a constitutional duty to give due consideration to anyone nominated by the president to fill a Supreme Court vacancy. In the modern history of the nation, there is no precedent for the Senate’s deliberately refusing to vote on a nominee to a vacant Supreme Court seat, whether during an election year or at any other time.
I. The Constitutional Duty to Consider Supreme Court Nominations
Republicans currently hold a majority of seats in the Senate and on the Senate Judiciary Committee. Accordingly, should the party remain unified, it has the capacity to refuse to schedule a hearing on any executive nomination or to refuse to report a presidential nominee out of committee. A government institution’s capacity to exercise political power is not, however, the measure of its responsibility under the Constitution. Rather, constitutional duty is best measured by an institution’s exercise of the enumerated responsibilities necessary to serve the Constitution’s purposes.
The Constitution explicitly informs us of those purposes. The Preamble states that “We the People” establish the Constitution in order to, among other things, “establish Justice.” The Framers believed that part of the reason behind the failure of the Articles of Confederation was its failure to provide for any federal court system. As Alexander Hamilton wrote in Federalist 78, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.” The Supreme Court was among the major innovations of the new Constitution. Unlike all other federal courts and indeed all other institutions subject to executive appointment, the Supreme Court is established by the Constitution directly. Its existence does not depend on congressional action, and Congress—much less the Senate acting unilaterally—does not have the authority to disestablish it.
It is no surprise, then, that the Constitution specifically enumerates the President’s power to “nominate, and by and with the Advice and Consent of the Senate . . . [to] appoint . . . Judges of the supreme Court . . . .” The Framers did not contemplate the use of the Senate’s advice and consent power solely to run out the clock on a presidential appointment. As Hamilton speculated in Federalist 76, rejection of a nominee “could only be to make place for another nomination by [the President].”
Viewing the appointments power as a whole confirms the Framers’ assumption that the President and the Senate would work together to ensure a functioning government. When the Senate is in recess, the President has the power to appoint officers to fill vacancies, including on the Supreme Court. This power implies that when the Senate is in session, it is expected to act on the President’s nominations. Past presidents have used the power of recess appointment for Supreme Court nominees, including for three nominees of President Eisenhower. Although the Senate expressed its disapproval of this practice in a 1960 “sense of the Senate” resolution, that resolution notably included an express exception for recess appointments “to prevent or end a breakdown in the administration of the Court’s business.”