Let the American People decide what kind of Supreme Court we will have

“We the People….”  The opening words of the Preamble to the United States Constitution are a familiar refrain that Americans learn from youth.  It was “the People” who established the United States Senate in Article I, Section 1, of that document, and it is for them that my colleagues and I now serve.

That same charter established “one supreme Court,” consisting of judges appointed “by and with the Advice and Consent of the Senate.”  As law professor John McGinnis stated in “The Heritage Guide to the Constitution,” this provision gives the Senate “complete and final discretion in whether to accept or approve a nomination.”  And as legal scholar Adam White has demonstrated, in a 2005 article carefully analyzing the Appointments Clause, that the Senate retains complete discretion with respect to whether it should even consider – much less accept or reject – presidential nominees.

Senator Harry Reid shared this view in 2005 when he stated “[n]owhere in that document does it say the Senate has a duty to give Presidential nominees a vote.”  In 2003, Senator Pat Leahy acknowledged that the power of “advice and consent” included the power to withhold consent.  Even then-Senator Joe Biden agreed, arguing in 1992 from the Senate floor that the Senate should refuse to consider a Supreme Court nominee until the people had spoken in the upcoming presidential election.

But now, with the presidential election in full swing, some of my friends on the other side of the aisle maintain that the opposite is true.  They argue instead that the Senate is constitutionally obligated to hold hearings and to vote – now, before the election is concluded and before the next president is sworn in – on the candidate that President Obama nominates to replace Justice Scalia on the Supreme Court.

I respectfully dissent.  Indeed, if this a-textual and a-historical account of the Constitution were accurate, then prior Senates violated the Constitution when they did not cast up-or-down votes on Supreme Court nominees.  Even the Standing Rules of the Senate would be suspect, contemplating as they do that “[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President…”

Neither does the prospect of a temporary eight-member Court raise concern.  For example, during the Court’s 2010-2011 term, the Court decided over 30 cases with eight or fewer justices, almost entirely as a result of recusals arising from Justice Kagan’s nomination.  Similarly, following the retirement of Justice Powell in 1987, the Court acted on 80 cases with eight or fewer justices.  In short, the sky does not fall when the Court comprises only eight justices.  As Justice Breyer recently stated, the work of the court “[f]or the most part…will not change.”

Consider also the following:  since the nomination of Justice Scalia to the Supreme Court in 1986, it has taken more than 70 days on average for the Senate to confirm or reject a nominee after that nominee has been submitted by the president to the Senate for its advice and consent.  Based on that historic average, even if President Obama referred a nominee to the Senate today, and the nominee were confirmed, that individual would not be seated in time to hear and rule on any of the cases on the Court’s docket for this term.  Instead, the nominee would only begin hearing cases next term, in October, with the country mere weeks away from choosing President Obama’s replacement.

In my view, with the future of the Supreme Court now at stake, and the election for our next president already well underway, it is the People who should determine what kind of Supreme Court they wish to have. The president is entitled, of course, to discharge his own constitutional authority to nominate.  But it is the Senate’s constitutional prerogative to withhold consent and protect the People’s voice.  As James Madison wrote in the Federalist Papers, ambition must counteract ambition.  And the People should decide.