Supreme Court Nomination: the Law and the Power of Your Vote

“If Hillary becomes president, I’m gonna do everything I can do to make sure that four years from now, we’ve still got an opening on the Supreme Court…This is not tough for me; I had the longest judicial vacancy in the history of the United States on the Eastern District of North Carolina. Not many people know that.” Richard Burr, October 29, 2016

by Gwen Parker

Shortly after Justice Scalia’s death on February 13, 2016, the Senate Judiciary Committee informed the Senate Majority Leader that the Committee will not hold any hearings on any Supreme Court nominees until after our next President is sworn into office on January 20, 2017. These obstructionist Senators insist that because Article II, Section 2 of the Constitution authorizes them to approve or disapprove Supreme Court nominees, it also empowers them to refuse to initiate any confirmation hearings at all for nearly a year.

Or perhaps it will be more than a year. Senator Burr recently promised to do everything in his power to “make sure that four years from now, we’ve still got an opening on the Supreme Court” if Hillary Clinton becomes President. This echoes Senator McCain’s pledge that Republicans would unite to block anyone that Hillary Clinton nominates to the Supreme Court.

It is time to get very clear about what these Senators are doing to our Supreme Court – and to us as citizens.

Let’s start with the fact that the Supreme Court truly is ours. As the only federal court that is expressly created by our Constitution, it “exists by a direct grant from the people of their judicial power; it is exercised by their authority, as their agent selected by themselves.” Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 728 (1838). We can see the Court acting as our agent when it strikes down laws that violate our First Amendment rights, or when it identifies regulations that amount to uncompensated takings of private property in violation of the Fifth Amendment. Exercising the very power that we granted to it through the Constitution, the Supreme Court often sits as a bulwark between us and those who would abuse the power they have gained by being elected to public office.


Although the Constitution establishes the Supreme Court, it does not specify the Court’s structure. Instead, responsibility for defining the Supreme Court has always rested with Congress. In this context, as in almost every other context, the Constitution permits Congress to act only through bills or other legislative devices that satisfy the bicameralism and presentment requirements of Article I, Section 7. You likely learned these requirements in elementary school (or perhaps from Schoolhouse Rock!): to become law, a bill must pass both houses of Congress, be presented to the President for approval, and either receive the President’s approval or, after receiving the President’s disapproval, be repassed by two-thirds of both the House and the Senate.

These requirements are not empty technicalities. They were included to combat one of the greatest fears expressed in the Constitutional Convention debates: the fear that the legislative branch of the federal government, or some faction within it, would arrogate power to itself at the expense of the other two branches. The Presidential veto power is, of course, a direct defense against legislative intrusions into the executive branch; bicameralism further limits legislative power by ensuring that Congress can act only when the House of Representatives (which represents the people on the basis of population) and the Senate (which represents the states) agree. Clearly, when Congress defines the Supreme Court, it is essential that these checks on potential abuses of legislative power are fully operational.

In the past, Congress has defined the Supreme Court through laws that have satisfied the requirements of Article I, Section 7. Ever since the enactment of the Judiciary Act of 1869, federal law has provided – and 28 U.S.C.A. § 1 provides today – that the Supreme Court “shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” Whose actions are bound by this law, if not the President, who is required by the Constitution to nominate Supreme Court justices, and the Senate, which has the authority to confirm or refuse those nominees? The Constitution and this statute work together. Their joint effect is that when there are fewer than nine justices, the President and the Senate must act.

the current supreme court

I use the word ‘must’ because the language of the statute is clear. “Shall consist” means “shall consist.” It does not mean “there should be nine, but another number will do if the President doesn’t feel like nominating anyone or if Senators prefer to sit on their hands.” Nor does it mean “there should be nine, but this statute has no effect in election years or when the President’s political party is not that of the majority in the Senate.”

The statute could be amended, of course. The Senators who do not wish to hold confirmation hearings could seek to amend the law to provide that the Supreme Court shall consist of eight justices, or to forbid the Senate from commencing confirmation hearings during election years. No one has proposed any such legislation, but thinking about it helps us see what the Senators who refuse to hold any confirmation hearings – or who promise to block anyone nominated to the Supreme Court by Hillary Clinton – are truly doing. In truth, these Senators are arrogating to themselves a power that properly lies with Congress as a whole: the power to define our Supreme Court. In truth, these Senators are unilaterally suspending – if not subverting – the federal statute that defines the Supreme Court. In so doing, these Senators are contravening our Constitution because undoing a law requires adherence to the same bicameralism and presentment requirements that applied when enacting it.

These Senators (and their defenders) have advanced numerous arguments as to why the Senate is permitted to obstruct Supreme Court nominations, but their arguments conflate the authority to approve or disapprove individual nominees – which is granted to the Senate under Article II, Section 2 – with the authority to define the Supreme Court’s structure – which is exercised by Congress under the Necessary and Proper Clause of Article I, Section 8. Once we acknowledge the important distinction between those two powers, the Senate’s refusal to hold any hearings at all starts to look an awful lot like a one-house, after-the-fact legislative veto of 28 U.S.C.A. § 1. Of course, federal courts struck down the one-house legislative veto decades ago on the grounds that it violated the requirements of Article I, Section 7 and contravened the separation of powers principle implicit in Articles I, II, and III.

The Senate’s current obstructionist tactics should similarly be consigned to the dust bin. Unfortunately, the courts probably cannot or will not reach the issue. This means that the most effective form of redress available is public pressure on our elected officials – including our vote. Please join me in condemning the Senate’s obstructionism. Please ask yourself, “Can I in good conscience vote for any incumbent Senator who – having taken a solemn oath of office to uphold and defend the Constitution – now promises to disregard the requirements of the Constitution and federal law?”

Having taken an oath to support the Constitution of the United States, I cannot.


gwen-parkerGwen Parker holds a JD from Stanford University Law School, MEM from Duke University, and BA in Philosophy from the University of Vermont.