WaPo Fact-Checker: No, the Senate DOESN’T Have to Vote on Obama’s Supreme Court Nominee

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Politics are dirty. They always have been and they always will be. In the election of 1800, Thomas Jefferson, a dignified statesman if ever there was one, claimed that his opponent, President John Adams, was a “hideous hermaphroditical character which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”

Adams maintained that electing Jefferson would lead to men having their wives and daughters violated in the streets and that children would be impaled upon pikes amidst the chaos that would ensue in a Jefferson presidency.

So, in all fairness, politics have actually become quite a bit more civil in more-recent decades.

Still, the profession remains dirty and the recent rift between Republicans and Democrats concerning the Senate’s refusal to budge on a Supreme Court nominee illustrates that. In truth, both parties have maintained opposite positions at times. Still, it is the Democrats pretending that Republicans are far out-of-line for refusing to hold a vote for any leftist radical President Obama tosses their way when they have been guilty of the same thing in years past.

Heck, even President Obama, as a senator, is guilty of this supposed obstruction.

Disregarding all the blustering, what does the Constitution say about the authority of the Senate to obstruct bad choices?

The Washington Post’s fact-checker, Glenn Kessler, examined this issue and discovered something that anyone familiar with the Constitution should already know: the Senate is not required to approve the president’s nominee or even hold a vote.

Kessler notes that this issue has been raised before and it has been effectively settled. He noted that in 1828, John Quincy Adams was battling a tough re-election which he ultimately lost to Andrew Jackson. Justice Robert Trimble died in August and on his way out the door, Adams nominated John Crittenden.

Americans found themselves in the same situation we are in currently and it led to nine days of debates in the Senate.

Adams supporters threw a fit and even offered an amendment to try and clarify the issue to mandate that the Senate vote on such instances. It was rejected.

According to the Congressional Research Service, “By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.”

This same scenario happened again in 1844 and 1852 with similar results.

Kessler also describes:

The most recent and perhaps relevant example is Lyndon B. Johnson’s 1968 nomination of Abe Fortas, at the time an associate justice, to be chief justice. Earl Warren in June had announced he would retire and wanted to make sure Johnson had a chance to nominate his replacement.

Johnson at the time was a lame duck, having decided not seek reelection. While Democrats controlled the Senate, southern Democrats were angry at the Warren Court’s record on jurisprudence — and the Republican presidential nominee, Richard Nixon, had pledged to nominate a southerner as his first Supreme Court pick.

Nineteen Senators, in fact, declared that they would refuse to accept any nomination by Johnson because he was a lame duck.  The Fortas nomination eventually ran aground over ethics issues and his close relationship with Johnson, and he eventually withdrew after his nomination failed a cloture vote.

Kessler’s analysis led him to assign three Pinocchios to the Democrats’ tall tales of supposed Senate responsibility.

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term.

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

In truth, however, Kessler may have been too kind. The fact is that there is nothing in the Constitution nor in precedent, recent or otherwise, which should compel the Senate to act before the new president is sworn-in.

In this view, there is no “yeah… but…” ambiguity and the Democrats should receive a firm four Pinocchios for having no legal leg to stand on while making wild assertions.

About the Author

Greg Campbell
Greg Campbell
An unapologetic patriot and conservative, Greg emerged within the blossoming Tea Party Movement as a political analyst dedicated to educating and advocating for the preservation of our constitutional principles and a free-market solution to problems birthed by economic liberalism. From authoring scathing commentaries to conducting interviews with some of the biggest names in politics today including party leaders, activists and conservative media personalities, Greg has worked to counter the left’s media narratives with truthful discussions of the biggest issues affecting Americans today. Greg’s primary area of focus is Second Amendment issues and the advancement of honest discussion concerning the constitutional right that protects all others. He lives in the Northwest with his wife, Heather, and enjoys writing, marksmanship and the outdoors.
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