The Supreme Court: The Nightmare Scenario
A year without a justice is the least of our worries. We could be in for a full-scale constitutional meltdown.
.. But suppose Hillary Clinton wins the presidency and the Republicans keep control of the Senate. There’s every reason to think that the Senate’s refusal to confirm a Democratic nominee would continue.
.. And if the Senate continues to refuse to act, that means that the President would have to play a card higher than the one the Senate is playing.
.. At some point, someone in the White House counsel’s office will notice that the Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee. The Constitution says that appointments shall be made “with the advice and consent” of the Senate. Traditionally, we have thought that the Senate’s “consent” is signaled by an affirmative vote. But voting on the nominee is just a convention—a shared understanding among the players in the game that we do things a certain way.
.. This is where the fragility of conventions comes into play. Just as there’s no rule that the Senate needs to consider the nominee quickly, there’s no clear reason why the Senate’s consent to a nomination must be signaled with an affirmative vote.
.. In many areas of the law, silence signifies consent. One could perfectly well read the Constitution to mean that the Senate has consented to a nominee if it remains silent for some reasonable period of time—in fact, it might make a lot of sense to read the consent requirement that way.
.. it’s important to realize that the history of judicial appointments over the last few decades is a history of one convention after another being tossed out. The political parties have been escalating their conflict over judicial personnel for years.
.. On January 20, 2017, she nominates a Deputy Secretary of Agriculture, and three weeks later, when the Senate has done nothing, President Clinton mentions at a press briefing that if ninety days go by from the date of nomination and the Senate still hasn’t acted, she will take that to mean that the Senate has no objection and has consented to the appointment.