On Monday, October 17, the Harvard Federalist Society chapter hosted me for a debate on whether the Senate has a duty to vote on Judge Garland’s nomination. Or at least it was supposed to be a debate. Despite the fact that many professors on the Harvard faculty are on record stating that the Senate has such a duty, the Chapter was unable to find a single person willing to debate me. The chapter also checked at other law schools, and no professor was willing to debate this topic.
Alas, I had to debate myself–or shadow-boxing as I called it. For the first few minutes of the event, I recounted the views of hundreds of law professors and others that the Senate has a duty to vote on Judge Garland’s confirmation. Here is a smattering of those views:
350 Law Professors: “This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government . . . The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.” (From HLS: Elizabeth Bartholet, Daniel Halperin, Charles J. Ogletree, Laurence H. Tribe).
Martha Minow and Deanell Tacha: Hardly a day elapsed after the death of Justice Antonin Scalia before members of the Senate told President Obama to ignore his clear constitutional duty to nominate a successor — and declared they would refuse to play their constitutionally mandated role of providing advice and consent. Perhaps some senators are now suspending their own duties simply because Republican presidential candidates Donald Trump and Senator Ted Cruz think this will help their races, advance their party, or hurt the opposing party … Article II of the Constitution is not ambiguous. It directs that the president “shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.” The senators swore their oath to the Constitution. An orderly process, adhering to these words of the Constitution, is not only what the law requires; it is essential to preserving the treasure that is our independent judiciary and rule of law. Let’s make sure this treasure survives this electoral season
President Obama – “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs.”
VP Biden – In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.
Then, for the remainder of my time, I explained why no duty can be found in text, history, or practice. This is purely a political question.