Democrats responded today to the GOP’s declaration that the Senate will not hold hearings on any potential Supreme Court nominee until after the next president is sworn in in January 2017.
The people should have the opportunity to weigh in on the direction of the court, a Feb. 23 letter from Republican members of the Senate Judiciary Committee said.
That’s exactly right, Sen. Elizabeth Warren (D-Mass.) said during a Democratic Steering and Outreach Committee forum Feb. 24. But, the American people have already weighed in, she added.
President Barack Obama was elected—twice, Warren said. He should fill this vacancy, she said.
The Constitution is clear that the president must nominate someone and that the Senate must advise and consent on that nominee, Warren said.
“I cannot find the clause that says except when there’s a year left in the term of a Democratic president,” she said.
The Republican Senate’s refusal to hold confirmation hearings before the announcement of a nominee is “completely unprecedented,” Warren said.
She noted that the Senate has been holding hearings on Supreme Court nominees since 1916. Nine nominees were confirmed without a hearing and one withdrew. All the others—every single one—received a hearing, Warren said.
It is “irresponsible to preemptively paralyze” the nomination process, she concluded.
Others went further.
Senate Republicans are violating their constitutional duties, Erwin Chemerinsky, Dean of the University of California, Irvine School of Law, said Feb. 24 on a press call with legal scholars.
It’s an unconstitutional power grab by the Senate, Edward Fallone, a professor at Marquette University Law School, said on the call.
The Founders were concerned with cronyism, so they didn’t vest the power to choose Supreme Court justices with just one branch of government, he said.
But the method they chose—nomination by the president, with advice and consent from the Senate—isn’t a fifty-fifty split, Fallone said.
The president can choose anyone he wants, he explained. The Senate has to advise and consent on that nominee. They don’t have any role in determining who is nominated, Fallone said.
Sen. Al Franken (D-Minn.) said depriving the president of the ability to nominate a justice in his last year in office was akin to telling senators that they couldn’t vote on a Supreme Court nominee in the last year of their term.
But if Senate Republicans get their way, no Senators—no matter how far into their term they are—will get to vote on a nominee this term.
Keep up with the latest Supreme Court news with a free trial to United States Law Week.
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