The “Appointments” clause provides that the President “shall nominate” and with the “Advice and Consent of the Senate” shall appoint Supreme Court Justices. These words are part of the checks and balances system designed at the Constitutional Convention in 1787. The point, according to Founding Father Alexander Hamilton, was “to promote a judicious choice of men for filling the offices of the Union.” Hamilton went on to say that the power to consent creates “a considerable and salutary restraint upon the conduct” of the president.
The notion that only “men” would serve in high offices has been consigned to history’s dustbin, and the “advice” part of the clause has all but disappeared. What is left is the Senate power to “consent,” which includes the power to reject. That has happened just eleven times, and only three in living memory. Two Nixon nominees to succeed Justice Abe Fortas, Clement Haynsworth in 1969 and G. Harrold Carswell in 1970, failed to gain the Senate’s consent. And in October 1987 the Senate voted, 58 to 42, to reject President Reagan’s nomination of Robert Bork to the Supreme Court, thereby giving birth to a new verb, “to Bork.”
Nothing in the Constitution says that a President may not nominate someone during the fourth year of his (or her) term. President Obama had every right in March 2016 to nominate Merrick Garland to succeed Justice Scalia, but Senate Leader Mitch McConnell upended the process by denying Judge Garland so much as a hearing, not to mention a “consent” vote.
Now, late in the fourth year of his term, President Trump has nominated Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg. McConnell’s 180-degree turnabout, with the complicity of Judiciary Committee Chairman Lindsay Graham, means that the Senate will vote on the nomination this year, most likely before Election Day. McConnell’s’ specious reasoning is that in 2016 the Presidency and the Senate were controlled by different parties, whereas today the Republican Party controls both. This is what law professors call “a distinction without a difference.”
The best one can say is that McConnell’s and Graham’s change of heart is an act of Machiavellian hypocrisy. It elevates politics over principle, which is nothing new in American life as we have come to know it. But it seems especially distasteful on the eve of this particular election.
Trump and McConnell are all about power, and no amount of hand-wringing can change the fact that so long as Trump holds office and McConnell controls the Senate’s agenda, they can nominate a Justice and submit the nomination to a Senate consent vote. Nominating a Supreme Court justice within weeks of an election isn’t illegal, it’s just in poor taste. Machiavelli would be proud of them both.
We may think that the Senate’s role is only to evaluate Judge Barrett’s qualifications, but another way to read what Hamilton wrote is that the Consent power is not so limited. If it were, he would have explained that “consent” was simply intended to ensure a “judicious choice” of judicial nominees. But he didn’t stop there. By adding that consent should also serve as a “salutary restraint upon the conduct” of the President, he was defining the consent power in much larger terms.
If senators look at their constitutional duty in this broader sense, they should regard their responsibility not simply as a matter of considering Judge Barrett’s qualifications, as to which I express no view, but by viewing “consent” through the prism of Trump’s conduct, beginning with his refusal to “let the voters decide” on November 3. He could have let this go until the votes are counted and then, if re-elected, nominated Judge Barrett. Instead, he is hedging his bet. That alone should give senators pause.
The scope of the consent power means that senators will be exercising their constitutional duty if they consider not only Judge Barrett’s credentials but also Trump’s conduct. They need look only no further than to how he has dealt with the pandemic, including the super-spreader Barrett nomination Rose Garden event, and his own case of Covid-19, to conclude that he has misconducted himself to our national detriment.
The heart of American democracy is the concept of checks and balances. And that heart can only beat soundly with an expansive, non-partisan understanding of the advice and consent clause. I can think of no better way for Senators to honor their constitutional duty to restrain this president than by saying “No” to the nomination of Amy Coney Barrett. That would not be to “Bork” Judge Barrett, but to “Hamilton” Donald Trump.