The Senate Has No Constitutional Obligation to Consider Nominees

24 George Mason Law Review 15 (2016)

Case Legal Studies Research Paper No. 2016-27

20 Pages Posted: 19 Aug 2016 Last revised: 30 Sep 2020

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: 2016

Abstract

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument 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.

Keywords: Appointments Clause, Judicial Nominations, Nominations, Senate Confirmation, Advice & Consent

JEL Classification: K49

Suggested Citation

Adler, Jonathan H., The Senate Has No Constitutional Obligation to Consider Nominees (2016). 24 George Mason Law Review 15 (2016), Case Legal Studies Research Paper No. 2016-27, Available at SSRN: https://ssrn.com/abstract=2823802

Jonathan H. Adler (Contact Author)

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