Jonathan Adler opines:
In anticipation of a Supreme Court nomination, the progressive Alliance for Justice is circulating a letter signed by more than 350 law professors arguing that the Senate has a “constitutional duty” to provide a hearing and vote on a nominee to the Supreme Court. While there are reasonable policy and political arguments that the Senate should consider a nominee by President Obama, the claim that the Senate has a constitutional “obligation” is quite weak. ...
I'm always dubious of these mass letters (even the ones I sign), since I suspect most of the signatories aren't really thinking the issue through but rather are just lending their academic credentials to a political cause they support. In any case, Prof. Adler slams the argument:
Whereas the AFJ’s law professors argue the Senate’s “obligation” is “clear,” legal scholars to have seriously considered this question have reached the opposite conclusion. In a post at The Originalism Blog, Professor Michael Ramsey readily dismantles the AFJ letter’s arguments. The appointments clause of the Constitution gives the president the power to nominate judges, but it also gives the Senate the power to provide “advice and consent” and places no limits on how the Senate discharges this power. The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee. (Ramsey has more on supposed “originalist” arguments in support of a supposed Senate “duty” here.) At NRO’s Bench Memos, Ed Whelan reaches similar conclusions.
Although many prominent liberal law professors signed the AFJ’s letter, serious liberal scholars who have studied the history of judicial confirmation fights are conspicuously absent from the list of signatories. Given the weakness of the constitutional argument, this should not surprise. It’s hard to argue with a straight face that the Senate has a constitutional obligation to, say, hold a confirmation hearing on a Supreme Court nominee when no such public hearings were held for most of the nation’s history. ...
While I believe the long-term interests of the court and the country are best served by a relatively quick and deferential confirmation process every time the president nominates a qualified individual to fill an open court seat, this has not been the norm for quite some time. Indeed, as Ben Wittes and Miguel Estrada ruefully explained, there are no longer any rules governing the confirmation process. Rather,
Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.
