Senate Democrats are trying to convince voters it’s a dereliction of constitutional duty for Republicans to block consideration of Obama’s Supreme Court nominee, but the little the Constitution actually says about the matter gives the Senate extremely wide latitude in handling nominees.
The Constitution does not require the Senate to hold hearings on Supreme Court nominees or even to consider every nominee, and it allows the Senate to block a nominee for essentially any reason, or even to impeach a justice for anything short of “good behavior.” (RELATED: Is Obama’s Supreme Court Pick Actually A Moderate?)
“[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 … ” is the extent of what the Constitution says about appointing Supreme Court justices.
Any Supreme Court Justice must be nominated and appointed by and with the advice and consent of the Senate, period. There’s nothing here stipulating hearings, consideration or a vote on a given nominee. There’s equally nothing on a time expectation.
Senate Majority Leader Mitch McConnell made it clear within hours of Justice Antonin Scalia’s death that his “advice” was for Obama to abstain from nominating a judge, so from a constitutional standpoint, it’s completely within bounds for the Senate to refuse to consider his nominee.
The Constitution also does not stipulate a size for the Supreme Court, so the Senate isn’t constitutionally required to maintain a nine-member bench. Historically, the court has had as few as six justices.
While it may score political points, Senate Minority Leader Harry Reid ’s assertion that “failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities,” is dubious at best.
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