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In 2016, the death of Justice Scalia created an opening in the Supreme Court. Senate Majority Leader McConnell announced he would not grant a hearing for any candidate proposed by then-President Obama. He later stated that if a Democrat was elected following Obama, then he would have refused an appointment until a Republican took office.

McConnell explained that he was simply following the "precedent" set by Abraham Lincoln. Lincoln himself decided, per the Constitution, that he would not fill a SCOTUS vacancy unless he was re-elected. How does the above action make it legal for the Senate Majority Leader to overrule the POTUS? Certainly, the authors of the Constitution never intended to empower the Majority Leader to indefinitely refuse a hearing based solely upon partisanship... No Republican protested, and I can't recall any notable action by any Democrat. I'm unaware of any interest in preventing a reoccurrence in the future.

Did SCOTUS have the authority to rule on McConnell's refusal? If not, could anyone have stopped him?

Rick Smith
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T.A. Neal
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  • An important part of this consideration is the implication of them ruling on a Supreme Court vacancy and the filling of the given seat - a possible tie in a SCOTUS case - apparently that leads to the lower courts' decision to stick, and for the case to not have binding precedent. I'm not sure what the ruling would be in a case that goes directly to the Supreme Court, but it sounds like the decision would be considered not binding precedent for future cases. – Alexander The 1st Mar 05 '24 at 06:11
  • The scope of the SC's judicial power is defined in article III, section 2 of the U.S. Constitution. It's too long to quote in full in a comment, but the relevant part is "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, [...]". Neither the Constitution nor (other) U.S. law specifies details of how the Senate must grant or deny its consent to a S.C. nomination -- only that the Senate's consent is required. – John Bollinger Mar 06 '24 at 15:21

5 Answers5

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No, this is the sole prerogative of the Senate, with no recourse to any other body.

To quote from this answer which asks about whether the President can force a vote:

Congress has certain constitutional powers and obligations, but it sets its own rules on how it does these things in almost every instance. Article 1, Section 5 includes the clause:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Supreme Court has generally ruled that the rules of the houses are essentially non-justiciable: they are not subject to overview by the judicial branch. Even the constitutional requirement for a quorum in the House/Senate is in the sole purview of the rules of the chambers themselves, and the courts have no power to dictate or question when the requirement has or hasn't been met; only the houses themselves determine this, by whatever means they see fit, and if the rules say there's a quorum, then there's a quorum.

In other words, if the Senate (as a body) decides not to perform its duties, then no one can force them to do so - not the President, not SCOTUS, and not the governments of the states that elected them. On the other hand, if the Senate (as a body) disagreed with McConnell's refusal, they could have changed the rules such that the Senate Majority Leader didn't have the authority to block a hearing/vote, and again no one else could tell them differently.

Bobson
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    “if the Senate (as a body) decides not to perform its duties, then no one can force them to do so” I’ve no comment on whether you rightly or wrongly drew that conclusion, but it seems like a dangerously anti-checks-and-balances part of the system if true. My limited knowledge says that if SCOTUS or POTUS refused to perform their duties, there is recourse by another branch. Why such little recourse here? (Perhaps because the recourse is “vote”?) – D. Ben Knoble Mar 05 '24 at 22:34
  • Let's say that the President decides that the Senate had an opportunity to advise and chose not to. Let's say the President decides that silence is consent - a perfectly valid legal conclusion in certain circumstances. How would one stop this action? – Michael W. Mar 05 '24 at 23:32
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    @D.BenKnoble The recourse is "vote." Though it used to be even more removed, when the Senate was answerable only to the state governments. That was very much on purpose. – fectin Mar 06 '24 at 00:04
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    @D.BenKnoble Congress is the most powerful of the three branches, at least on paper. They certainly don't have all the power, and the other branches can check them, but in the end a sufficiently united Congress can override a Presidential veto and change the law if they don't like how SCOTUS interpreted the current ones. They also can impeach Presidents and Justices on whatever grounds they feel are sufficient. And they're the only federal branch involved in amending the Constitution (although even Congress can't do that alone). – Bobson Mar 06 '24 at 01:34
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    @D.BenKnoble: And -- for a third perspective -- we should perhaps forgive the Framers for being more comfortable with the remedy of removing politicians from office; they were mostly Revolutionaries and knew that politicians not doing their jobs would be recalled by the voters, one way or another. They may have had trouble imagining some of the actions of the Senators in our lifetime! Surely, say the Framers, we should only elect capable representatives? – Corbin Mar 06 '24 at 03:13
  • @MichaelW. The president can conclude what they want, but that does not make it so. The staff of the court would not permit the presumed appointee to enter the chambers. Of course, if the staff sided with the president, we'd have a more interesting situation. – Corrodias Mar 06 '24 at 15:29
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    @Corrodias I have a hard time believing that the only safeguard against what I outlined is "random SCOTUS staff members." – Michael W. Mar 06 '24 at 15:57
  • As a brit this whole conversation makes me chuckle when our entire constitution is predicated on assuming every member of parliament is a "good chap" who conforms to conventions that have absolutely no force of law or checks or balances... As we've seen in the last few years, that's wholly unadequate... At least you guys have some balances... – ScottishTapWater Mar 06 '24 at 17:22
  • @MichaelW. Well, any such action would quickly result in a court case, with the seated and recognized members of the SCOTUS making a decision about how the constitution applies, as usual. If there were a sufficient breakdown in trust after the decision, state governments or departments of the executive could start ignoring their decisions. If things got bad enough, the military might have to get involved. When people ignore the rules, a lot of norms can unravel rapidly. – Corrodias Mar 07 '24 at 05:13
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There are several legal/constitutional obstacles to taking such a case through the federal court system. The existence of these obstacles doesn't mean that it could never happen, but does affect the political calculus for anybody launching a suit on this topic.

  1. Standing. Anyone could think that Senator McConnell's actions were wrong or unconstitutional, but not anyone gets to translate that thought into a legal action. There needs to be some level of particularized harm to someone, beyond that person just being a concerned citizen. The most plausible candidates would be the President and/or his nominee. But it is not obvious that a nominee has a Constitutional right for an up-or-down vote in the Senate. The Senate can give its consent, but it doesn't have to. There is very little ground to say that you deserve an explicit indication of its lack of consent, as opposed to an implicit denial through the passage of time.

  2. The Speech or Debate Clause of the U.S. Constitution protects certain official conduct by Senators and Representatives from intervention by the courts. Senators cannot be penalized by a court for things they say in the Senate, nor can a court order them to speak or vote in a certain way. There is no legal remedy against a majority of Senators voting no on a nominee, or voting no on scheduling a vote.

  3. The Rulemaking Clause gives each of the House and Senate the authority to set their own rules of procedure (to the exclusion of one another, or other branches of government). A challenge to the Senate's impeachment procedures failed in Nixon v. United States 506 U.S. 224 (1993) - that's a former federal judge, Walter Nixon, not the ex-President - partly for this reason. It's not for a court to say that Senate rules on the timing of nomination hearings should be different.

  4. In relation to the above two points, the political question doctrine as expounded in Baker v. Carr 369 U.S. 186 (1962) indicates that the judiciary should be reluctant to intervene in a controversy where the issue is constitutionally assigned elsewhere; where they would have to make a policy determination that would be better made by another branch; and where there is no clear standard by which they should resolve it. For example, a delay by a State in considering a Constitutional amendment is a nonjusticiable political question (Coleman v. Miller 307 U.S. 433 (1939)). The manner and timing of Senate procedures are not the kind of thing that a court can decide for it.

  5. On delay, there is no obvious standard that is being breached - how long is too long? The other side could certainly argue that nominees ought to be scrutinized, and that the Senate in any case has a lot of other work to be doing. Also, while McConnell might have said that he would never schedule an up-or-down vote, that's a political statement of intent. The chain of events "I will never vote for that bill" ---> (politics happens) ---> "I vote for this bill" is well-known. So even if "never" really is legally too long, a plaintiff would have a hard time showing that a vote really would never happen. In particular, it seems that if a President were to choose a nominee generally acceptable to the Senate, then that person would surely be confirmed no matter what Senators had said earlier - a serious political challenge to find such a candidate, but that's a political problem rather than a structural Constitutional one.

Again, the point here is that any lawsuit on the topic faces challenges, which would make a prospective plaintiff hesitant to go down that route. President Obama might think thoughts like: "If I do this, then it will probably not work, and I will waste a lot of time and energy looking foolish". Or: "Republicans will accuse me of upending the separation of powers". Or: "If I ask the judicial branch to decide this, the Republicans will say that just shows how right they are to be suspicious I want to fill the courts with left-wing stooges". Or: "Escalating in this way will make it harder for us to get anything through the Senate".

alexg
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    This is probably a better answer than mine - or at least a much more comprehensive one. +1 – Bobson Mar 05 '24 at 16:58
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Adding my own answer because I think I disagree with the current top-vote getter on somewhat pedantic grounds. Bobson's answer is a defensible response to what SCOTUS would have said about their authority to overrule McConnell. But your question was whether SCOTUS had the authority to rule on it at all. To which the answer is basically, sure, if the Obama administration had pressed the issue.

The Supreme Court's authority begins and ends in large part wherever the Supreme Court decides it does. But there are two major checks to the breadth of their authority. First, there has to be a real "case or controversy" to discuss. So the Court can't just rule tomorrow that X, Y, or Z is the law, someone being harmed has to bring a case and ask them to do something. Secondly, Congress has the power to strip the Court of appellate jurisdiction of certain controversies. So if SCOTUS starts to overstep, they can pass a bill saying the Supreme Court has no authority to hear certain cases. (This is only done very rarely.)

In this case, there was definitely a real controversy and Congress didn't pull the rug out from under the Court by jurisdiction stripping. So yes, I think someone could've sued and eventually argued it all the way up to SCOTUS.

That said, would they have the authority is a different question from would they choose to exercise authority. The Supreme Court often rules that certain controversies are non-justiable "political questions" that are poorly suited for the courts to decide, and that the other branches need to work out themselves.

That said, they did weigh in NLRB v. Noel Canning, which at its heart was a question of interpretation of the Senate's power to decide when its in recess and whether the president could declare unilaterally that a recess was happening. That's pretty superficially similar to the heart of the dispute of the Garland nomination, which revolved around dueling interpretation of whether or not the Senate had given "advise and consent."

Of course, Noel Canning is probably a window into why the Obama admin didn't sue... they got spanked 9-0. But SCOTUS in that case rejected the interpretation that the underlying controversy itself was a political question.

I guess the tl;dr here is SCOTUS had the authority to rule on Garland appointment, but the smart money is they would've either a. disclaimed the authority to do anything about or b. ruled outright in favor of McConnell's interpretation

TenthJustice
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    I think I can see the distinction you're trying to make, but I'm not sure it's a useful one to make. Yes, a ruling that says "We don't have authority to question the Senate about its own procedures" like the one in Noel Canning is technically a ruling on the topic, but that's like answering "Can you pass the salt?" with "Yes" and not doing so. – Bobson Mar 05 '24 at 16:57
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    Thanks to all for the informative responses! I had not thought about the fact that the Senate has, at least in theory, total control over "some" of its duties. I shudder to think how far this could be pushed by someone like McConnell.

    The fact that the Leaders of BOTH Houses have so much control over what gets a vote only exacerbates the standard gridlock we see every day. e.g. The most recent SCOTUS ruling (presuming that I understand it...) states that only Congress can rule on Amendment 14-3. The Dems are working on a bill, but there is no chance Johnson will allow a vote.

     – T.A. Neal Mar 05 '24 at 20:10
  • @Bobson I think the point was more that the ruling of non-intervention was not a guaranteed outcome and need not necessarily happen in the future. In other words, the court could some day decide that it does have the authority to intervene, and there's precious little to stop it. I'm not well-versed on the court's authority granted by the constitution... but then again, it's also the decider of how the constitution applies. You could quickly wind up in a crisis if the branches disagreed on its authority. – Corrodias Mar 06 '24 at 15:34
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    True enough @Corrodias, but "Did SCOTUS have the authority" is a different question from "Did SCOTUS, pragmatically, have the ability". bobson responded "no" to the first of those, which is what was actually posed. If we accept that as a correct interpretation of SCOTUS' lawful authority, then the present answer says "yes, but no-one can prevent SCOTUS from exceeding its authority". That's true, and perhaps relevant, but it's not what I took the question to be asking. – John Bollinger Mar 06 '24 at 15:41
  • @T.A.Neal While the leaders have significant control, it's not total. I believe both houses have procedures to force votes over the wishes of their leaders. It's just not usually politically feasible, since it requires a number of their party members to disagree with the leader strongly enough. – Barmar Mar 06 '24 at 17:18
  • @JohnBollinger I interpret the question as asking about "authority" in both de jure and de facto senses. Whether you think the constitution grants the court the authority (de jure) is an interesting question; but as the court is the arbiter of the application of law, especially as pertaining to the constitution, it has considerable leeway in deciding its own authority under that same document, and that is also worth asking and knowing about. SCOTUS was not even explicitly granted the power to invalidate unconstitutional laws; that power was inferred and was first invoked in 1803. – Corrodias Mar 07 '24 at 05:22
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I like the other answers, but there's one more angle to consider: what a successful ruling would have looked like.

  1. The Constitution is rather explicit that only the Senate can offer "advice and consent" (Article II Section 2)

    [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    There's no provision for SCOTUS (or anyone else) to overrule that. Courts can and do determine their own reach on general issues of law (see the recent cases on Chevron Deference), but there's no real wiggle room here (see also the debate over what the text of the Second Amendment means) for any court to rule they can force an appointment over the objections of a duly elected Senate. To do so would literally be unconstitutional.

  2. Assuming a SCOTUS that finds someone has standing and hears the case (as TenthJustice suggests), the best anyone could have hoped for would be SCOTUS ruling that the Senate refusing to hold a vote on a nominee is not Constitutional. Assuming the Senate just accepted that ruling, McConnell would likely have moved the Judiciary Committee to hold a vote, where his nomination would have almost certainly died outright. Even if they did pass him out of committee, the broader Senate would be highly unlikely to approve a nominee they were forced to hold a vote on.

Put more simply, it would have been viewed as a highly political decision and been met with an even more partisan response netting the same result: a rejected Garland nomination.

Machavity
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Yes.

It's uncertain what would have happened had Obama raised a lawsuit but there's one scenario that would almost certainly have forced the Supreme Court to rule.

If Obama had announced that the Senate having declined to express it's opinion for 6 months he was proceeding on the basis they had no objection and Garland's momination was now approved. This means it would be McConnell who would have to initiate legal procedures which would inevitably end up in the Supreme Court. Why would the Court take this up - because otherwise the Chief Justice would have to preside over Garland's investiture - no way he is doing that without the case having been considered!

deep64blue
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