Family Research Council

A Supreme Decision: Filling Scalia's Seat

By Chris Gacek Senior Fellow for Regulatory Policy

The untimely passing of Associate Justice Antonin Scalia has launched an intense political debate. Essentially, the two positions are that the Senate should consider any nomination sent to it by President Barack Obama or that it should wait to consider a nomination from the next President who will have received a fresh mandate from the American people in the November 2016 election.  

The first argument is grounded in the belief that the Senate has a constitutional obligation to consider presidential nominations to the Supreme Court. Some go further and assert that such nominations, once made, should receive deference from the Senate.

The text of the Constitution provides no support for either proposition.

Article II, Section 2 of the Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” Clearly, filling vacancies on the Court is a shared power belonging jointly to the President and the Senate.

The president is responsible for nominating individuals to fill vacancies on the Supreme Court. However, it is only the Senate that can grant the necessary approval (“advice and consent”) to the president’s nomination. After having received the Senate’s approval the president is then able to complete the appointment process, and the nominee may be sworn in as a member of the Supreme Court.

There are no conditions, requirements, or limitations on the manner in which the Senate must act. In fact, there is no requirement that it act at all. Additionally, non-action may be a form of disapproval that is wholly legitimate. This means that the Senate need not hold appropriate hearings concerning or including the nominee, let alone hold committee or floor votes on the nominee.

The Senate is not constitutionally obligated to perform any specific action toward the president’s nominee. Refusal to hold hearings, etc., constitutes a form of “advice.” Therefore, absence of Senate confirmation of a presidential nominee dooms that nomination.

According to Adam J. White, in a recent Weekly Standard article,[i] presidents have made 160 nominations to the Supreme Court. The Senate has confirmed only 124 of them. Of the thirty-six nominations that failed, twenty-five never received an up-or-down vote. Those twenty-five nominees did not become Supreme Court justices.

With these facts in mind, Family Research Council believes that the Senate should not consider, hold hearings upon, schedule time to consider, or deliberate in any fashion upon any nominee President Obama puts forward to fill the seat vacated by Justice Scalia by his untimely passing. The reason is simple: President Obama’s consistent record of nominating and appointing Supreme Court justices and federal judges who view the Constitution as a malleable political instrument instead of a text with a defined meaning based on the consensus held by the Founding Fathers gives the Senate a justifiable basis for refusing to act upon his nominee.

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Meet The Author
Chris Gacek Senior Fellow for Regulatory Policy

Dr. Chris Gacek is the Senior Fellow, Regulatory Affairs at Family Research Council. Dr. Gacek received a Bachelors of Science in economics from the Wharton School, University of (Full Bio)

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