His repeated assertions that the Senate has a “constitutional obligation” to confirm an Obama Administration nominee came in response to Ohio Senator Rob Portman indicating that it would be “wiser” to wait until after the presidential election.
In reality, the Senate has no such constitutional “obligation,” and further, forestalling Supreme Court nominations until after the presidential election is lawful, non-threatening, and entirely plausible:
- Under Article II, Section 2 of the United States Constitution, confirmation by the Senate requires both “advice” and “consent,” and the Senate maintains no obligation to “consent.” There is no requirement to hold a vote, and no requirement to vote in favor of confirmation. In fact, Congress sets the very size of the Supreme Court, and could elect to permanently maintain an eight justice court.
- Only 15 percent of Supreme Court cases are decided by one vote, meaning the maintenance of an eight-Justice-court fails to present a significant threat, especially since it is already too late for a new justice to participate in this term’s decisions.
- President Obama cannot lawfully appoint a Supreme Court Justice through the “recess appointment” process. The Supreme Court unanimously rejected such a move in the 2014 case NLRB v. Noel Canning, finding that the President has no “recess appointment power” unless the Senate actually declares that it is in a recess (which it will not do here).