Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means

Premise one: a President may nominate. Premise two: the Senate may consent or refuse. Premise three: nobody has to explain why. If you accept those three, then most of the argument about Merrick Garland and Amy Coney Barrett is already over, and what remains is a debate about consistency, which is a different and smaller thing.

I want to make that argument carefully, because it is the kind of dispute where both sides throw old quotations at each other and neither side stops to ask what the Constitution says. Let me define the question, state the charge in its strongest form, and then answer it in numbered points. I will also concede what should be conceded, because a case that cannot survive its own weak spots is not worth making.

The facts, in order

February 13, 2016. Justice Antonin Scalia died. It was an election year, with the presidential election set for November. The Senate had a Republican majority and the President, Barack Obama, was a Democrat.

February 2016. Majority Leader Mitch McConnell announced that the Senate would not act on a nominee that year, and that the voters should have a voice in the selection through the coming election. The Judiciary Committee chairman, Chuck Grassley, agreed.

March 16, 2016. President Obama nominated Judge Merrick Garland of the D.C. Circuit. The Senate held no hearing and no vote. The nomination lapsed when the Congress ended on January 3, 2017. The seat remained open until President Trump's nominee, Neil Gorsuch, was confirmed in April 2017.

September 18, 2020. Justice Ruth Bader Ginsburg died, again in an election year, with the election set for November 3. The Senate had a Republican majority, and the President, Donald Trump, was a Republican.

September 26, 2020. President Trump nominated Judge Amy Coney Barrett of the Seventh Circuit. The Judiciary Committee held hearings in mid-October, and the Senate confirmed her on October 26, 2020, by a vote of 52 to 48, a little over a week before the election.

Two vacancies, both in election years, both with a Republican Senate. In one the Senate declined to act, and in the other it confirmed within about a month. The Democratic complaint is that this is a flagrant double standard. That is the charge.

The charge at its strongest

Here it is in the form I would want if I were arguing the other side. The Republicans, in 2016, said the principle was that the Senate should not confirm a Supreme Court justice in an election year, because the people should decide. They said it with solemnity. Some Republican senators went further. In 2016, Senator Lindsey Graham, a member of the Judiciary Committee, said on the record that if a vacancy arose in the last year of a Republican President's term, his words could be used against him. In 2020, the same senators said the principle did not apply, and they moved a nominee through at record speed, before the very election that, four years earlier, they said should decide.

On this account, the principle was never a principle. It was a pretext, applied in 2016 because it helped and dropped in 2020 because it didn't. The constitutional rhetoric about "advice and consent" was cover for a power play. And the people who point to a principle only when it favors them are hypocrites, whatever the text says.

I do not think this charge is stupid. The statements of 2016 were more sweeping than the Senate's own later account, and some of the language, "let the people decide," would have been cleaner if the speakers had grounded it in the party-control point I describe below. Politicians have a habit of stating a position as a universal rule when it is really a tactical judgment. If the charge is that some Republican senators spoke carelessly in 2016, the charge is fair.

But the charge is that the action was unprincipled, and that I dispute. Here is why.

Point one: the Constitution makes consent a power, not a duty

Read the clause. Article II, Section 2, Clause 2: 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."

The President nominates. The Senate gives advice and consent. The text does not say that the Senate must hold a hearing, nor must it vote within any period, and it does not say that the Senate must vote at all. It says that an appointment requires the Senate's consent. Consent that cannot be withheld would not be consent.

That is the structure Hamilton described in Federalist 76, where he explained that the Senate's concurrence would be "an excellent check upon a spirit of favoritism in the President." A check that can be exercised only by saying yes is not a check. And the Senate's authority under Article I, Section 5 to "determine the Rules of its Proceedings" covers when and whether to take up a nomination. A Senate that declines to act on a nominee is using a power the Constitution gave it.

That does not settle whether it was wise. It settles whether it was lawful, and it was.

Point two: the difference between 2016 and 2020 is one fact

Let us look at what differed. In both years the vacancy occurred in a presidential election year. In both years the Senate majority was Republican. What differed was the President. In 2016 the President belonged to the party opposite the Senate majority. In 2020 the President belonged to the same party.

That one fact is the core of the best defense, and it is not a convenient invention. It tracks a pattern in the Senate's actual history. Where the President and the Senate majority belong to the same party, the Senate has generally confirmed election-year nominees. Where they belong to different parties and the vacancy arises late in the term, the Senate has seldom done so. A few examples from the record show the shape of it.

• 1916. President Woodrow Wilson, a Democrat, nominated Louis Brandeis in January of the election year. The Senate was Democratic, and Brandeis was confirmed in June.
• 1932. President Herbert Hoover, a Republican, nominated Benjamin Cardozo in February of the election year, and the Senate confirmed him.
• 1844. President John Tyler, who had broken with the Whig party that controlled the Senate, nominated several men for a seat in his last year. The Senate rejected or declined to confirm each of them.
• 1968. President Lyndon Johnson, a Democrat with a Democratic Senate, tried to elevate Justice Abe Fortas to Chief Justice, and the nomination failed in the Senate after a filibuster and was withdrawn. This is a complicating example, since the party was the same, but the nominee was embroiled in controversy over ethics and the President was a lame duck.

There is a counterexample worth stating plainly: Anthony Kennedy was confirmed in February 1988 under a Democratic Senate and a Republican President, in an election year. But the nomination had been made in late 1987, after two earlier nominees fell away, and the Senate acted in the following winter. That is a case where a divided government confirmed a nominee in an election year, so the pattern is a tendency and not a law of nature. I will not claim more for it than that.

The accurate summary is that the Senate majority's willingness to confirm has depended on whether the confirmation would, in effect, hand a seat to the other party's President late in his term, and on who controlled the Senate. That is a fact about political power, and a principle drawn from it is a principle about divided government.

Point three: Democrats said the same thing when it suited them

Now the strongest answer to the hypocrisy charge is that both parties have held the position, and have switched sides, over the years.

On June 25, 1992, Senator Joe Biden, then chairman of the Judiciary Committee, gave a floor speech about the possibility of a Supreme Court vacancy in the last year of President George H. W. Bush's term. There was no vacancy at that time. Biden said that if one arose, the President should consider not naming a nominee until after the election, and that "once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over." He added that the Judiciary Committee should seriously consider not scheduling confirmation hearings until after the campaign. Biden later said that one excerpt of the speech was not an accurate description of his views. I take the speech for what it was, a hypothetical about a vacancy that did not exist, and I would not call it a binding precedent. But it shows that a leading Democrat on the Judiciary Committee, with a President of the opposing party, articulated the same position that Republicans took in 2016. When the Democrats later called the Republican position an unprecedented abuse, their own senior member had said something very close to it.

In July 2007, Senator Charles Schumer, speaking to the American Constitution Society, said that the Senate should not confirm any more Supreme Court nominees of President George W. Bush "except in extraordinary circumstances." Again, the speech concerned a hypothetical vacancy. But the principle is the same: a Senate majority of the opposite party may decline to confirm in the closing stretch of a presidency.

So the position that the Senate may, and perhaps should, hold up a nominee of an opposing President late in the term is a bipartisan position, held by each party when it was in the Senate majority against the other party's President. Neither party has clean hands. The hypocrisy runs both ways, and that is the right conclusion to reach if you read the record rather than the headlines.

Point four: the voters did decide

The 2016 argument, that the people should have a voice, deserves some respect too. The answer is that the voters did have a voice. They elected the Senate that held the majority, and they had elected that majority in 2014 with the knowledge that it would exercise the consent power. And in November 2016 they elected the President who filled the seat. Whether you like the result, the process was the one the Constitution describes.

In 2020 the same logic applied. The voters had elected a Republican President in 2016 and a Republican Senate majority in 2018, and both used their powers within the constitutional term. A President's term is four years, not three. A Senate majority's mandate runs its full term. The Constitution contains no clause that shortens either in an election year. If it did, it would have to say when the clock stops, and it does not. This is the reason that the strongest objection to the 2020 confirmation, that it came too close to the election, has to rest on a custom, not on the text.

The strongest objection, in the best form

Here is the version of the objection I find hardest to answer. The objection is not that the Senate lacked the power, but that a norm was broken, and that norms hold the Senate together. The Senate does not run on rules alone. It runs on restraint: the willingness of a majority to leave some powers unused so that the minority will do likewise. When the majority used its power to the fullest in 2016 and again in 2020, it spent a stock of goodwill that took generations to build. The result, the objector says, is more bitterness, more retaliation, and a Court whose composition looks like a spoil of electoral war.

I grant a good deal of that. The change in norms is real, and it has costs. If you read how the Senate has handled the filibuster, as described in The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended, you will see the same pattern. Each side escalates, and each says the other started it.

But the answer has two parts. First, the norm the objector invokes is not a norm that was clearly held by both sides in the first place; Point three shows that. A norm of "never confirm in an election year" was never the Senate's practice, and a norm of "always confirm the President's choice" was never the practice either. The record is mixed. Second, if the objection is that restraint is good, it is a call for restraint from both parties, and I will say amen to that, but a call for restraint from one party while the other is not restrained is not a principle. It is a request to lose gracefully.

What I conclude

Here is my verdict, stated as a set of numbered conclusions.

1. The Senate had the constitutional power to act as it did in both years. The text of Article II makes consent a power to give or withhold.
2. The best principled distinction between the two years is divided versus unified government, which matches a good part of the Senate's history, though not all of it.
3. The hypocrisy charge is strongest against loose rhetoric, the universal-sounding statements of 2016, and weakest against the actions, which fit a coherent rule about who controls the Senate and the White House.
4. Both parties have said both things. Biden in 1992 and Schumer in 2007 articulated the 2016 position when it helped their side, and some Republican senators who defended 2016 did not state the party-control distinction that would have made their position consistent.
5. The proper response is to hold both parties to one rule. If the rule is that a Senate majority of one party may decline to confirm the opposing President's late-term nominee, then it applies to both. If you want a different rule, you should write it down, perhaps in a Senate rule or a resolution, before it is needed.

A related point: the number of justices and the way the Senate treats them is a question about the structure of the Court, and conservatives should be careful about where their own arguments lead. Nine Justices Since 1869, and Why the Number Should Stay Nine addresses that, and When the Senate and the President Disagree on Judges, History Shows What Follows gives a longer history of divided government and the bench. The deepest argument for why this fight matters is in Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?: a branch with judgment and no sword is the one whose composition matters most, because its members serve for life. The Senate's other quiet gatekeeper, the committee custom described in The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench, shows how much of the confirmation process runs on practice rather than on text. For the whole text of the Constitution, see the Constitution page.

The case in brief

1. Article II, Section 2 gives the President the power to nominate and the Senate the power to consent, and the text does not require the Senate to act on any nominee.
2. The Senate did not act on Merrick Garland in 2016 and confirmed Amy Coney Barrett in 2020, and the difference tracks whether the President and the Senate majority shared a party.
3. The position that a Senate majority may decline a late-term nominee of the opposing party was stated by Democrats in 1992 and 2007 and by Republicans in 2016.
4. The hypocrisy charge lands on loose rhetoric more than on the action, and both parties have switched positions with their circumstances.
5. The cure is a rule both parties will accept in advance, and a voter's answer at the next election.

What you can do: read Article II, Section 2 and then call your senators' offices to ask what rule they would apply to a Supreme Court vacancy in an election year if the White House and Senate were held by opposite parties.