For Amy Coney Barrett's confirmation process, the Constitution is on Senate GOP's side

(Editor’s Note: This piece first appeared in the Washington Examiner on September 26, 2020.)

Republicans are poised to remake the Supreme Court in their image. On Saturday, President Trump nominated Amy Coney Barrett to fill the vacancy created by the recent death of Justice Ruth Bader Ginsburg, a longtime member of the court’s liberal bloc. Barrett, a conservative jurist who currently sits on the U.S. Court of Appeals for the 7th Circuit, could shift the court’s ideological center of gravity to the right for a generation or more if she is confirmed by the Senate.

Democrats have denounced efforts by Senate Republicans to expedite Barrett's confirmation before Election Day as unprecedented and hypocritical. With just 38 days left before voters pick the next president, Democrats claim there is not enough time for senators to assess Barrett's record and evaluate her qualifications adequately for a seat on the highest court in the land. They also point out that Republicans' decision to confirm Barrett before voters head to the polls contradicts their 2016 decision not to consider Merrick Garland's Supreme Court nomination until after the people spoke in that year’s presidential election.

While the Republican effort to expedite Barrett’s confirmation is not unprecedented, it is unusual. Since 1975, senators have taken almost 70 days, on average, to review Supreme Court nominees before voting on whether to confirm them. And Republicans’ justification for why their willingness to consider Barrett’s nomination this year is consistent with their unwillingness to consider Garland’s nomination in 2016 appears to be motivated by political calculation instead of political principle.

But Democrats are wrong when they suggest that Republicans are abusing their power and undermining the Constitution by rushing Barrett through the confirmation process. The Constitution empowers the Senate to decide how it considers Supreme Court nominees. Contrary to Democrats' claims, there is no preexisting standard against which they can assess the legitimacy of Republican efforts to confirm Barrett.

The Constitution’s Appointments Clause divides the power to nominate and confirm Supreme Court nominees between the president and the Senate. Under the Constitution, the president acts first in the confirmation process when he nominates someone to serve on the Supreme Court. But the Constitution’s Rules and Expulsion Clause empowers senators to determine how the confirmation process will unfold once the president officially submits a nominee to the Senate for advice and consent. Senators are, therefore, able to structure the confirmation process however they wish as long as they do not violate any other constitutional provisions in doing so.

The framers of the Constitution considered four options on where to vest the appointment power during the Federal Convention of 1787 — Congress, the president, the Senate, and a combination of the president and the Senate. For most of the convention, they gave the exclusive power to appoint Supreme Court justices to the Senate. The framers shifted the appointment power at the end of the convention by vesting it in the president and the Senate jointly.

The Constitution, as ratified, grants the power to nominate Supreme Court justices to the president exclusively. But it requires the Senate to confirm presidential nominees before they can assume their seats on the Supreme Court. While the president and the Senate exercise the appointment power under the Appointments Clause jointly, they do so independently. The Senate cannot tell the president whom to nominate. The president cannot tell the Senate how to confirm his nominee. As in 2016, the Senate may choose not to approve the president's nominee. And the Senate may decide to expedite the confirmation process as in 2020.

The ability to decide whether and how the confirmation process unfolds inside the Senate follows logically from the institution’s coequal role in the process. The framers rejected the idea that the Senate had a subordinate role in the appointment process. They did not believe that the president’s nominees were entitled to up-or-down confirmation votes on the Senate floor. By extension, the framers would have opposed arguments that the Senate should not confirm Supreme Court nominees during the presidential election years. They did not think that the Senate's formal decisions regarding the confirmation process could be held to a standard that originated outside the Senate.

This is evident in an 1813 letter James Madison sent to the Senate regarding the Appointments Clause. In the letter, Madison, who was president at the time, wrote, “The [president] and Senate, in cases of appointments to offices, and of treatise, are to be considered as independent and co-ordinate with each other." Here, Madison uses the term "coordinate" to signify equality in rank between the president and Senate concerning the confirmation process, much in the same way that the House and Senate are coordinate houses of Congress concerning the legislative process. Madison pointed out that the House and Senate shared the legislative power in the same way that the president and the Senate shared the appointment power. And just as the Senate alone can decide whether and how it will consider each piece of legislation that passes the House, it also gets to determine whether and how it will consider Supreme Court nominees.

Democrats may be concerned about how Senate Republicans are managing Barrett’s confirmation process. And they may be worried about the consequences for the Supreme Court of replacing Ginsburg with the conservative jurist.

The fact that Democrats are concerned about the confirmation process and how it is likely to end does not mean that the process itself is illegitimate or undermines the Constitution. Instead, Democrats undermine the Constitution by suggesting that the Senate cannot use the power given by the document to decide how to structure the confirmation process for Supreme Court nominees. In reality, senators are entirely within their constitutional rights to block Garland and expedite Barrett.

Of course, blocking Garland and expediting Barrett may be a bad idea for reasons unrelated to the Constitution’s Appointments Clause. But the best place to adjudicate whether or not that is the case is inside the Senate. If voters do not like what senators decide there, they can hold them accountable in the next election. And if Republicans are successful in their efforts to confirm Barrett before Election Day, they won't have to wait long to do so.