Appointing a Supreme Court Justice – What the U.S Constitution Says


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Upon the death of Supreme Court Justice Antonin Scalia, the President offered compassionate condolences and stated:

The constitution is pretty clear about what is supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone. The Senate is to consider that nomination and either they disapprove of that nominee or that nominee is elevated to the Supreme Court. ***

 I am going to present somebody who indisputedly (sic) is qualified for the seat. *** I intend to nominate in due time a very well-qualified candidate. If we are following basic precedent, then that nominee will be presented before the committees, the vote will be taken, and ultimately [he or she] will be confirmed. *** And, this will be the opportunity for Senators to do their job. *** I intend to do my job between now and January 20 of 2017, and I expect them to do their job as well.  

The President’s statement ignited a false narrative among many in the press and elsewhere suggesting that the Senate must hold hearings and approve the President’s nominee. To overcome the confusion created by the false narrative, it is helpful to review what the Appointments Clause in the Constitution actually says. (Justice Scalia would have preferred we do so).

Article II, Section 2 of the Constitution provides that the President

“… shall nominate, and by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court….”

Preliminarily, the plain meaning of the Appointments Clause clearly contemplates both executive and legislative branch participation in the process of seating a Justice of the Supreme Court. The Framers of the Constitution separated power for a reason. They understood that power corrupts and absolute power corrupts absolutely. They therefore ensured that no one, not the President, not the Senate, gets absolute power here. Thus, apart from recess appointments (which I will address in a future article), a president can nominate, but unless the Senate consents, the nominee remains just that, a nominee. It is only with the “advice and consent” of the Senate that a nominee is appointed to the Supreme Court. It seems the Framers also understood that in abundance of counselors there is victory. (Proverbs 24:6).

But what happens if the Senate refuses to hold hearings or vote on a nominee, regardless of his or her qualifications? Is not that an abdication of their duty under the Constitution? No. Nothing within the plain meaning of the Appointments Clause requires the Senate to hold hearings or vote on the nominee. The Constitution simply requires the consent of the Senate before a nominee is appointed as a Justice. Setting aside the political wisdom of either holding or refusing to hold a hearing or vote on a nominee, if the Senate refuses to consider a nominee, no consent exists. The nomination fails under such a scenario.

Finally, does anyone find it interesting that no one in the press is discussing the advice part of the Appointments Clause? If one gives an answer before he hears, it is his folly and shame (Proverbs 18:13). Does the President abdicate his responsibility if he fails to seek the advice of the Senate prior to the appointment?  Does the Senate abdicate its responsibility if it fails to give advice to the President prior to the appointment? The one who states his case first seems right, until the other comes and examines him. (Proverbs 18:17) Giving and receiving advice on a nominee would require the Senate and the President to actually communicate with each other.  Good governance would seem to encourage the notion.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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