Recently there has been quite a large outcry against the Senate over the issue of confirming a Supreme Court nomination. Republican leaders in the Senate have repeatedly stated that they will not move to hear or confirm a nomination from President Obama, and instead are allowing the American public to decide its Presidential candidate, thereby deciding which direction the Court should sway. Because of this, many different groups and people have decried these statements by attempting to call the Senate out for not performing its "Constitutional duty." But is this a constitutionally sound idea?
First, let's look at the actual article of the Constitution that states the process of a Supreme Court nomination. According to The Heritage Guide to the Constitution's website, Article II, Section 2, Clause 2 (otherwise known as the Appointments Clause) states:
"The President... shall nominate, and 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law...."
So the movement of thought among some of the American public is very well summed up and put forth by a letter from the Alliance For Justice organization, who believe that the Senate is failing to perform its duty. When looking at the article that establishes the procedure and role of the Senate, we don't see explicit or even strong support for the sentiment of this idea. The Senate is not required to hold hearings or even consider an appointment, because by not doing so they are advising and not providing consent, which is the constitutional right.
Another point of confusion is that we have gotten incredibly comfortable with nine court justices, but the Constitution doesn't explicitly establish how many justices are to sit on the Court. In actuality we have had anywhere from six to ten justices on the Court in our history- it has just been set at nine for quite a while now. Congress is the actual power that establishes how many justices will sit on the Court, so if they wanted to keep it at eight, they could. Eight justices doesn't make much sense due to the likelihood of a 4 to 4 tie, so they won't probably never leave it at eight. This goes to show that the Senate has the full right to refuse, hear or confirm a nomination, and that they don't actually have a "constitutional duty" to hold hearings for a nomination for the next Supreme Court Justice.
An article from Jonathan Adler, a professor at the Case Western University of Law, broke down and explained this discussion in much greater depth. That article can be found here. Despite whether or not you agree with the Senate in handling this situation in this way, don't fall for the argument that they are failing to do their job. By acting how they are, they actually are participating and acting well within their job by not confirming a nomination.
