Advice and Consent Doesn't Mean Rubber Stamp Everything

Blog Post - Advice and Consent Doesn't Mean Rubber Stamp Everything

Since President Obama put forward his nominee for the Supreme Court, a lot of rhetoric has been thrown around about the Senate's "constitutional duty". Ignoring for a minute the irony that progressives who routinely mock constitutional principles suddenly care about the document, does the Senate have a constitutional duty to act on the president's nominee?

The argument that the Senate must hold a vote is on extremely weak footing. It says nowhere in the Constitution that the Senate is obligated to hold hearings on a nominee. It doesn't specifically tell us the manner in which the Senate must provide advice and withhold consent. In this case, the advice of the Senate is to let the next President decide, and it is withholding consent by not holding hearings on the nominee. This is well within their right and not in anyway in opposition to the text. Progressives are arguing that a body that makes its own rules is somehow under an obligation to offer advice and consent in a very specific way. That's asinine.

The text provides no specific criteria for which the Senate is allowed to withhold consent. It doesn't say the Senate "must hold a vote on the nominee". Insinuating there is a specific manner in which this MUST happen is absolutely false. There isn't.

What is clear here is that the Senate's advice is to wait until after the election. The President is choosing to ignore that advice. In response, the Senate is withholding consent by not considering his nominee. All parties are faithfully fulfilling their constitutional obligation.

Some may argue that it is politically advantageous to hold hearings and at least consider the President's nominee. These arguments are not without merit. That being said, there is a large gap between what is wise and what is obligatory. The Senate can decide for itself how it wants to approach the process.

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