Senate Advice and Consent about Supreme Court Justices – Yes

Rather than “confirm and consent,” the Constitution reads differently, and “He” means the President, as follows:

“He 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.”

Thus, with the “Advice and Consent” of the Senate the President shall nominate and appoint judges of the Supreme Court, etc. To change any part of this would require an amendment to the Constitution of massive proportions.

It is totally incomprehensible that the Senate would approve an amendment to give away any of their powers, much less control of the appointments for judges, or any of the other major government positions. And the idea that three-fourths of the state legislatures would ratify such an amendment seems totally absurd.

The only question that could, or may, be asked is whether the nomination and confirmation process should be subject to the filibuster. At present, a nominee to the Supreme Court appears before the Senate Judiciary Committee, which began in 1925, and then is reported out to the full Senate as a positive, negative or neutral recommendation.

The nominee is then confirmed or rejected by majority vote, but the “dreaded” filibuster may be used by any single Senator to delay the vote. As a result, it becomes a procedural necessity for 60 senators to cut off the debate and proceed to the floor vote.

This process, which some consider an arcane relic of senatorial courtesy, has often been threatened and negotiated, etc., in very modern times, although no associate justice has been held up by a prolonged debate.

In 1968 Pres. Johnson’s nominee for Chief Justice, Abraham Fortas, was rejected by filibuster. A group of so-called “Dixie-crats” and the Republican minority combined to make the vote 45-43 (12 abstaining) for cutting off debate, with 67 votes required at the time to invoke cloture.

Oddly enough, only twelve Supreme Court nominees have been rejected by the senate in what are termed “up or down” votes. Five other nominees never came to a vote, and various presidents have withdrawn the names of eight after they were proposed to the senate.

Clearly, “advice and consent” is firmly settled as a requirement of the Constitution and almost certain to be retained.