Role of the Senate in Supreme Court Nominations

Supreme Court

Now that President Obama has announced his nomination for the Supreme Court, all eyes have turned to the Senate. What actions will the Senate take? Should they be required to hold a hearing? Are the Senators refusing to do their “duty” if they do not hold hearings?

There seems to be a prevailing notion that the Supreme Court is REQUIRED to have 9 judges. That’s simply not the case, as the Constitution does not set any number at all. In fact, the court has had different numbers of judges over the years. The number is to be set by Congress, as specifically provided in Article III of the Constitution. So it’s not determined by the President or the judicial branch. This is part of the “checks and balances” we all learned about as kids. Of course, because the court has had 9 judges since 1869, much longer than any of us have been alive, it’s easy to see why we have become so accustomed to that number that we believe it must stay that way. But that is not what the Constitution requires, and Congress could change the number at any time.

The Supreme Court is more than capable of meeting its Constitutional duties and requirements without a 9th Justice. The Court began with 6 judges, and has had up to 10. That also means that it has had an even number of judges on several occasions in the past, so it was perfectly able to carry out its duties even without an odd number to break a tie.

Since the death of Justice Scalia in February, the Supreme Court has handed down 10 opinions, all in March. 5 of the opinions were unanimous. 4 of them were 6-2 rulings. Only one of them was 4-4. (An 11th decision was a case of “original jurisdiction”, where the Supreme Court was not reviewing a lower court’s decision, but was instead the original court of trial.) So of the 10 opinions since the tragic death of Justice Scalia, only one would have relied on his input. Even if he disagreed with the others, the rulings would have been the same. That’s not to say that his dissents, if any, would have been lacking entertainment, of course…

It is clear, then, that the Supreme Court is currently functioning in exactly the way it was designed, even with an empty chair. So the Senate has every right to hold a hearing, refuse to hold a hearing, or even participate in enacting a new law limiting the number of judges to 8 (or some other number), which would make the current nomination a complete nullity.

Or, the Senate could hold hearings, take a vote, and REJECT the nomination. That’s perfectly acceptable, and has been done on numerous occasions. (Anybody remember Judge Bork?)

Of course, I expect the Republicans will cave in to political pressure and hold hearings, and likely confirm the nomination. The current crop of Republican leaders (in both the House and the Senate) seem to cave in on most things.

But that’s different than saying the Senate is REQUIRED to hold hearings, vote, or consent to the nomination. They are not required to do any of those things by the Constitution. And as indicated above, there is no emergency situation which would dictate some immediate action. President Obama has made his nomination, which is all he is permitted to do, unless and until the Senate consents, at which point Mr. Obama may then appoint him. In the meantime, he can only sit and wait, and apply political pressure. We will soon see how much of that political pressure the Senate is able to withstand.

Leave a Reply