Refusing to Consider Judge Merrick Garland: What Would Hamilton Think?

Statue of Alexander Hamilton, Great Falls, Paterson, New Jersey, USA.    Alexander Hamilton envisioned the potential power of
Statue of Alexander Hamilton, Great Falls, Paterson, New Jersey, USA. Alexander Hamilton envisioned the potential power of the Passaic Falls for industrial development.

The Republican leadership of the United States Senate has made clear that they will exercise their majority power to ensure that the Senate will not take up the nomination of Judge Merrick Garland, or any other nominee, to the United States Supreme Court until a new President is elected. This position is directly at odds with the Constitution because it intentionally undermines the authority and obligation of the President to appoint Supreme Court justices.

Article II, Section II, Clause II of the United States 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..." The view of the Republican leaders that they can simply block any nomination without hearing is contrary to these plain words. The president has the right and the obligation not only to nominate, but to appoint. Refusing to advise and/or consent to any Obama nomination eviscerates the President's constitutional right and obligation to appoint Supreme Court judges and, accordingly, intentionally prevents a President from fulfilling his Constitutional duties.

There is no doubt that the Senate has an important Constitutional role in the process of appointing Supreme Court judges. Their advice and consent ensures a robust process to evaluate the nominee and operates as a check on the executive branch to ensure that nominees for such a critical position are not subject to the sole judgment of a particular President. Indeed, founding father Alexander Hamilton spoke at length about the rationale for this provision of the Constitution in Federalist Paper #76.

Hamilton was well aware that vesting the power of nomination and appointment in the president, and power to advise and consent in the Senate, would result in some vigorous debate and might result in failed nominations. However, Hamilton's faith in the process was supported by three assumptions. He believed: a) that there would always be enough people [men] of integrity and "independence" in the Senate, guided by their sense of "public-spirit," to prevent misuse of the advise and consent power; b) that the power was "checked" by the ability of the President to just send forth another nominee; and c) that in light of these things there would likely be only "special and strong reasons" to reject a nominee.

Unfortunately, Hamilton's assumptions were all incorrect. There are not enough people in the Senate of integrity and independence, the power is not "checked" by sending another nominee when the Senate won't consider any nominee, and there will not be only "special and strong reasons" to reject a nominee when all nominees are categorically rejected. Indeed, it would be a nice fantasy to conjure Hamilton in the present. I am confident that he would be appalled at this perversion of the advice and consent clause. (He might also enjoy taking in the show Hamilton on Broadway).

The argument that there is somehow an exception where the president has one year remaining in their term is specious. The Constitution does not apply to only seventy-five percent of a president's term of office. If there were some exception, it would be found in the Constitution. The Republican efforts to found their actions on a so-called "Biden Rule" are similarly misplaced. While Joe Biden gave a speech in 1992 questioning whether a Supreme Court nomination should be delayed close to an election, neither he, nor anyone else, has caused the Senate to refuse outright to consider any nominee. In addition, this argument, taken to its logical extreme, yields absurd outcomes. Should senators only be able to vote in their first five years? Can the Senate refuse to advise and consent and prevent a president from fulfilling their constitutional obligations for any number of reasons that fulfill their particular political whims? What's next: the Senate won't provide advice and consent because the president was born in....Hawaii?

In short, the actions of the Republican Senate leadership and Republican senators in blocking any nomination violate the Constitution. If only the Justice Department would sue. Even if the suit was successful, there would still be a cynical strategy of delay or refusal to confirm someone as obviously qualified as Judge Merrick Garland but, it would serve the purpose of making clear that the Republican Party leadership's purported respect for the Constitution, and the founder's "original intent" is a sham, invoked only when convenient to naked political interest. Where is Alexander Hamilton when you need him?