Why the Senate Doesn't Have to Act on Merrick Garland's Nomination

Does the Senate have to hold hearings and a vote on President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court? The Constitution says that unless the Senate gives advice and consent Garland cannot be appointed, but it does not require the Senate to do anything in response to the nomination.

The relevant text is the appointments clause of Article II, Section 2, which provides: “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” This language makes the Senate’s consent a prerequisite to presidential appointments, but it does not place any duty on the Senate to act nor describe how it should proceed in its decision-making process. Even if the word “shall” in the clause is read as mandatory, “shall” refers only to things the president does. Instead, the Senate’s core role in appointments is as a check on the president, which it exercises by not giving consent—a choice it can make simply by not acting.

No one doubts that the Senate can refuse consent to Garland’s appointment, so the only real question is the process: can it only do so after holding hearings and taking a vote? Of course, the text manifestly doesn’t say anything about hearings and votes, and there are at least three reasons why these requirements cannot be found by implication.

First, the Constitution’s separation of powers provisions often provide for one part of government to propose an action subject to the approval of another part. The president negotiates treaties and the Senate consents or does not consent to them. One chamber of Congress passes bills and the other chamber passes or does not pass them. The president proposes laws and Congress enacts or does not enact them. Congress proposes constitutional amendments and state legislatures ratify or do not ratify them. The Constitution is not read in any of these situations to impose a duty on the second entity to act formally on the proposal. If the second entity fails to approve, for whatever reason and in whatever manner, the measure does not take effect.

The one exception is presentment. Article I, Section 7 says that when Congress passes a bill, the president ordinarily must veto the bill within 10 days—and give reasons for doing so—or the bill becomes law. The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere).

Second, by Article I, Section 5, the Senate has power to “determine the Rules of its Proceedings.” As a result, the Constitution expressly lets the Senate decide how to respond to presidential nominations. The Senate could, for example, adopt a rule that it will promptly hold votes on all presidential nominations. But that is the Senate’s decision to make, and for better or worse it’s adopted a different approach, which is that it can decide not to have formal proceedings and instead withhold its consent through an informal process.

Some critics say the Senate is refusing to “consider” Garland’s nomination, but that’s mistaken: Senators are aware of the nomination; they have thought about it and decided that formal action should wait until after the presidential election. The critics’ claim—that it doesn’t count as “considering” unless the Senate acts formally—is exactly contrary to Article I, Section 5, which says the Senate decides on its rules of procedure. In this case, the procedure that’s been adopted is for the majority leader and the chair of the Senate Judiciary Committee to convey the Senate majority’s decision not to consent to the appointment (at least until after the election).

Third, the Senate’s longstanding practice, at least in modern times, is often not to act formally on nominees. This practice has mostly involved nominations to lower courts and executive branch offices (as with the Senate’s failure to vote on numerous judicial nominations by President George W. Bush). But the appointments clause applies to all nominations equally; if the clause imposed any duty on the Senate, the duty would encompass all nominations, not just Supreme Court nominations. Moreover, the Senate has in modern times assumed that Supreme Court nominations can be filibustered (which has the effect of denying a formal vote). Indeed, the Senate did filibuster Lyndon Johnson’s nomination of Abe Fortas to be chief justice, and many senators (including then-Senators Barack Obama and John Kerry) joined an unsuccessful filibuster against Samuel Alito. The Senate’s practice, under both Democrats and Republicans, shows that it thinks the appointments clause does not impose a duty to take formal action.

Some commentators suggest that the Senate has a special duty to act on Supreme Court nominations because of the Court’s constitutional significance. The Constitution provides for a Supreme Court and does not provide for lower federal courts or executive offices, which are all creations of Congress. It may be that the Senate could not block the Court’s very existence by refusing consent to all nominations. But that is far from the present situation, in which the Senate is temporarily declining consent on a single nomination to an otherwise-fully staffed Court. It would be somewhat easier for the Court to operate with nine justices than eight. But the Constitution does not require nine justices at all; at various times in history, Congress has provided for six, eight, or 10. Like lower federal courts and executive offices, the ninth seat is entirely Congress’ creation and could be abolished if Congress chooses. While there may be a constitutional obligation to maintain a Supreme Court, there is no constitutional obligation to maintain nine justices nor to assure that the Court operates at maximum efficiency.         

Critics—who concede that the Senate can refuse to approve Supreme Court nominations—argue for an atextual requirement that the Senate must refuse its consent through  formal procedures. But nothing in the Constitution requires this, and the Senate’s longstanding practice has included many failures to take formal action on nominees. Garland is by all accounts a fine judge and the Senate’s failure to take formal action may be regrettable, but that is a decision the Constitution entrusts to the political process.

This article is part of “Confirmations: The Battle Over the Constitution,” a partnership with the National Constitution Center.