On Election Year Supreme Court Vacancies (Redux)
In 2016, after the tragic passing of Justice Antonin Scalia, I blogged a fair amount on the history of election year supreme court vacancies and the ever-worsening judicial confirmation process. In these two posts, I surveyed the history of election year vacancies and confirmations:
- On Election Year Supreme Court Vacancies (2-13-2016)
- In Election Years, a (Spotty) History of Confirming Court Nominees (2-17-2016)
I also wrote a short article solicited by the George Mason Law Review arguing against the position (popular at the time in some circles), that the Senate had a constitutional obligation to hold hearings or provide a vote on President Obama’s nomination of Merrick Garland.
As some of the arguments and history recounted in that piece seem relevant today, here are a few excerpts (footnotes omitted).
The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but “clear.” This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: “The Senate has a Constitutional obligati
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