FACT CHECK: Does The Constitution Require The Senate To Vote On SCOTUS Nominees?

Emily Larsen | Fact Check Reporter

A HuffPost article published Monday evening claimed that the U.S. Constitution requires the Senate to vote on the president’s Supreme Court nominees.

“The Senate is constitutionally required to review and vote on a president’s nominees, regardless of party,” it read.

Many people on Twitter also suggested that the Senate is required to vote on a nominee.

“The Senate was required to put the President’s nominee to a vote. Not reject him out right. THAT is how it works,” one tweet said Tuesday.

“No, the Senate isn’t required to APPROVE a #SCOTUS #nominee – but they sure as hell must HAVE A VOTE on the nominee of the POTUS,” another user said in June.

Verdict: False

The Constitution requires the president to appoint Supreme Court justices with the “advice and consent” of the Senate, but it does not say that the Senate must vote on the nominations. Several previous nominees never received a Senate floor vote, though that is uncommon.

Fact Check:

Jennifer Bendery, a senior politics reporter for HuffPost, wrote the article ahead of President Donald Trump’s announcement naming his nominee to replace retiring Supreme Court Justice Anthony Kennedy. She pointed to the “irony” of Senate Majority Leader Mitch McConnell’s call for the Senate to evaluate Trump’s pick fairly.

McConnell and other Republican Senate leaders refused in 2016 to consider President Barack Obama’s Supreme Court nominee, Merrick Garland, to replace the late Justice Antonin Scalia because it was a presidential election year. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said in a statement shortly after Scalia’s death.

Some Democrats have said that the Senate should follow McConnell’s rule and not consider Trump’s nominee to replace Kennedy ahead of the midterm elections in November. (RELATED: Has It Historically Taken More Than 67 Days To Vote On A Supreme Court Nominee?)

Bendery said that both arguments to delay were “dumb” and claimed that there is a constitutional requirement for the Senate to vote on Supreme Court nominees.

Experts say that the Constitution does not explicitly require the Senate to vote on the nominees, however.

Article II, Section 2 of the Constitution describes the relationship between the president and the Senate in appointing Supreme Court nominees: The president, “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” If the nominee is not approved by the Senate, he or she does not serve as a justice.

“Notice that the Senate is not required to give its ‘advice and consent,'” Ilya Somin, a law professor at George Mason University Antonin Scalia Law School, wrote in The Washington Post in 2016. “So long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so.”

Michael D. Ramsey, a law professor at the University of San Diego Law School, pointed out in The Atlantic in 2016 that the Senate often does not formally act on judicial nominees for lower courts. He wrote that in the case of Garland, senators had, in a sense, considered the nominee by refusing to act. “They have thought about it and decided that formal action should wait until after the presidential election.”

A 2011 Congressional Research Service report noted that several Supreme Court nominees never received a floor vote. Thirteen nominations never reached the Senate floor and another 13 that reached the floor never received a final vote. (RELATED: Has Trump Appointed 1 In Every 8 Circut Court Judges?)

For example, the Senate Judiciary Committee failed to vote on George W. Bush’s nomination of Harriet E. Miers to the Supreme Court in 2005 before her nomination was withdrawn. Miers faced criticism from people in both parties for her limited experience in constitutional law and for her close relationship with Bush. In a few instances in the 1800s, the Senate postponed or tabled votes on Supreme Court nominees with no further action.

“Nothing in Senate rules, procedures, or practice requires that the Senate proceed to a final vote on a nomination,” the CRS report said, but noted that “in most instances it has done so.”

HuffPost later corrected the article. It now says that the arguments to delay action on Supreme Court confirmations “are silly because the Senate is supposed to provide ‘advice and consent’ on a president’s nominees, and both parties interpret that to mean whatever they want depending on who is the majority.”

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Published: Tuesday, July 10, 2018

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Emily Larsen

Fact Check Reporter


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