The process of filling vacancies on the Supreme Court ain’t what it used to be. There was a time when the only real question the Senate Judiciary Committee addressed was fitness for the office: Did the nominee have the requisite legal background, moral integrity, judicial temperament, and powers of intellect and reasoning to justify his or her elevation to a position on the High Court that might easily last for decades? But that was before Roe v. Wade (1973) created a new litmus test for justices and injected more partisanship into SC nomination hearings than had ever been the case before. And that was before the “borking” of Robert Bork (1987), the eminent judge and legal scholar, who was indeed a politically conservative “originalist.”
These days it’s no longer primarily a question of whether the nominee has what it takes to sit on the High Court. Instead, it’s about how the nominee is likely to vote on those specific issues near and dear to the hearts of U.S. Senators of either party. Nominees really do differ in their judicial philosophies, as they interpret the Constitution, statutory law, and regulations through the lens of strict or loose constructionism, originalism or textualism or living constitutionalism. And, with some predictability, different philosophical tendencies lead to different legal conclusions, resulting in the conflicting opinions of Supreme Court justices.
Is there anything illegitimate about the confirmation process as applied to Judge Amy Coney Barrett? No, not by itself, i.e., not without reference to Merrick Garland. Adequate time was provided for reviewing Barrett’s record of decisions, speeches, and law review articles. Adequate time was provided for her to meet individually with senators. Adequate time was provided for members of the Senate Committee on the Judiciary to lecture her, question her, and respond to her statements. Her confirmation has not been “rushed” or “hurried” or “rammed through” – despite the claims of senators and lobbying groups that oppose her.
Judge Barrett didn’t "steal" Merrick Garland’s seat. Neither did President Trump. She wasn’t a judge and he wasn’t a president when the Senate Majority Leader, Mitch McConnell, decided not to bring Garland’s nomination up for a vote. McConnell’s action was not unconstitutional, any more than is the action of Democratic senators who – sometimes for months, sometimes for years – sit on a Republican president’s nominations to fill ambassadorships and numerous other vacant executive branch positions. The Constitution sets forth the process for presidential nominations and appointments to all of these positions in the same clause of the same sentence:
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, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
[If you want to remember where to find this provision in the Constitution, just think “2:2:2” – Article Two, Section two, Clause two.]
Notice that the Constitution sets no time frame for the Senate’s review of nominations, nor does it require the Senate to even consider presidential nominees.
Was Mitch McConnell’s refusal to bring Merrick Garland’s SC nomination to the Senate floor for a vote unlawful? No. Was it illegitimate or fundamentally unfair? Well, the answer to that question may depend on how we view the “time-honored traditions” of the Senate – when they favor the outcome we prefer and when they don’t.
The President gets to nominate. The Senate gets to decide whether to take up, postpone, or ignore that nomination. And if it decides to consider the nominee, then it's up to the senators, according to the rules they establish, whether or not to confirm that nominee. A nominee doesn't "deserve" a vote. A nominee is not "entitled" to a vote. The Senate decides, in its discretion, whether to give the nominee a vote at all. And then, if it does decide to vote, it determines whether to confirm or reject that nominee.
Birthday wishes to Hillary Clinton, also known as the Hildabeast.
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