April 03, 2016

The Senate’s continued failure to do its job and hold a hearing on the nomination of Judge Merrick Garland to the Supreme Court now goes into its third week. Its recalcitrance fits the tenor of the Age of Trump: someone else started it.

That is the gist of Senator Orrin Hatch’s opinion piece in the New York Times last week. The breakdown in judicial nominations started with Robert Bork, President Reagan’s choice for the Court in 1987. Because then-Senator Joe Biden chaired the Judiciary Committee and oversaw the “vicious effort to sully the nominee’s good name”, the entire process has been politicized beyond recognition. 

Robert Bork’s hearing was a travesty and Democrats have never fully come to terms with the damage they did that year. But Reagan did get his two nominees--Bork and Anthony Kennedy-- to a vote with one winning confirmation in a presidential election year.

In any case, a generation has passed since the Bork nomination. Isn’t it time for leaders in the Senate to move on? Clearly there’s more at work here.

Consider Hatch’s choice of language in his Times piece: Obama’s disagreement with Scalia’s approach to constitutional interpretation is “contempt.” When Obama appoints judges who agree with his approach and not his opponents’ understanding of the law, Hatch alleges he is “working to pack the federal courts with compliant judges.”

Hatch packs his partisan piece with just enough legitimate concerns to give it the hint of respectability. Both parties have, in the past, acted shamefully when it comes to judicial appointments, though he conveniently ignores his own party’s conduct.

The Senator also fears that a confirmation hearing in the midst of a
“toxic” presidential campaign would further damage the already damaged process of judicial confirmations. It’s thus better for everyone for the Senate to avoid fulfilling its constitutional obligation.

The call now is to “let the people decide,” a radical anti-republican view that will mark another low in Supreme Court nominations. For no matter when a vacancy occurs in the future, there will now be calls to let the people decide the issue in the next congressional or presidential election.

There are some who believe the Senate doesn’t have a responsibility rooted in the Constitution to have a hearing or a vote.

Defenders of this point of view simply cite the Constitution:

[The President] . . . 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 . . .

The Constitution is silent on the procedure the Senate should use to advise and consent. It does not specifically mandate a hearing nor does it mandate a vote.  The Senate itself gets to decide how to apply this constitutional language. 

But that doesn't mean avoiding constitutional reality.  We aren’t living in 1787 anymore and the Senate has developed rather thoughtful and time-honored rules to govern its work.

The Constitution is also quite clear on this point: “Each House may determine the Rules of its Proceedings . . . “

The Senate’s Standing Rule XXV creates a committee on the judiciary, to which all matters of federal courts and judges are to be referred.

Since the 1955 nomination of John Marshall Harlan by President Eisenhower, the Senate has consistently chosen to hold public hearings as part of the process of giving its advice and consent.

It is the floor vote where the Senate gives its advice and consent. This is not a convenient pleasantry for those wishing to see Garland confirmed. The Senate’s own rules make it clear that a floor vote is the vehicle for following the advice and consent function ordered by the Constitution.

Senate rule XXXI specifically notes, “When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, "Will the Senate advise and consent to this nomination?"

Yes, the Constitution is silent on the method the Senate can employ to give or withhold its advice and consent. But for 70 years it has chosen hearings and a vote.

The Senate is free to change this rule. But until it does so, it is currently abrogating its responsibilities to its own norms and to the Constitution.

A leader might suggest the Senate fulfill its obligations and conduct a civil hearing on the nominee with a full and respectful conversation on Constitutional interpretation, the role of the Court, and the rule of law.

It could be a perfect antidote to Trumpism, the popular passion of the day.

The Senate was designed to do this. It was designed to cool our worst impulses.

Publius wrote in Federalist 62:

"The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. . . . a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration."

The Senate of today has forgotten the history of its design. It has given in to the sudden passions whipped up by our factious leaders. No longer able to “refine and enlarge the public views,” it has succumbed to them.

That is a flaw in our current Senate the Merrick nomination has helped to lay bare.

Senate, Merrick Garland, Judiciary Committee, Orrin Hatch

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