The US Constitution is silent on the Senate procedures for confirming presidential appointments to the US Supreme Court.
Article II, Section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”
That’s it! Nothing in there about the Senate having to hold hearings to question the nominee or even anything on whether a justice can be confirmed by a simple majority vote or whether a supermajority is required. It’s always been confirmation by a simple majority, with the filibuster threshold used by the minority party as leverage to prevent voting on “controversial” nominees – until Sen. Harry Reid (D-NV) implemented the nuclear option in 2013 to require only a simple majority to halt debate on federal judicial nominations.
Nothing in there about standards necessary for confirming someone nominated to the court. Simple power politics is in play for every vote to confirm a nominee to the Supreme Court. If the majority party has the votes, the nominee is confirmed. Period. Lately, that has been done irrespective of the outrageous public spectacles by Democrats and their crazed allies during the Bork, Thomas, Roberts, Gorsuch, and – most egregiously – the Kavanaugh hearings in 2018. Conversely, a Senator can vote against a judicial nominee for virtually any reason under the sun because that is what the Constitution allows by being silent on judicial standards.
Senate hearings for USSC nominees have only been conducted over the last 95 years, as noted in this fine official US Senate summary of the Senate’s nomination and confirmation process. [Note: this article is an excellent read for political history buffs.] Senate hearings have become a tradition and, especially since the Robert Bork hearings during the Reagan era, have morphed into opportunities for Democrat political grand-standing while essentially corrupting the confirmation process.
To summarize: The Senate’s advice and consent duty is undefined in the US Constitution. There is no requirement whatsoever to hold hearings. Confirmation of USSC justices – as other officers nominated to positions in the Executive Branch by a president – is essentially the practice of sheer politics (any nominee receiving a simple majority of votes is confirmed). Oh, and there’s nothing in the Constitution about there being “liberal seats” or “conservative seats” or “swing-vote seats” on the Court. Those concoctions have been used by the Democrat-media complex to attempt to politically control the Supreme Court’s makeup for years. All that counts is whether a president’s nominee can garner enough votes to be confirmed. And the past concept of reaching consensus on presidential nominations that once dominated in the Senate went out the window with the Bork hearings.
Since the death of far-left USSC Justice Ruth Bader-Ginsburg, the Democrat-media complex have been apoplectic in their attempts to shout down and prevent President Trump’s clear constitutional authority to nominate a replacement at any time he chooses. Since the nomination and confirmation process is entirely political, the Democrats have no leg to stand on in denying the confirmation of a Trump nomination to the Court – except for the practice of raw politics that would result in a failure for the nominee to receive the required number of votes. And that is of course what the Democrats and their media allies are attempting to do – undermine politically-vulnerable Republicans in order to convince them to vote against the Trump nominee. That is all the Democrats have at this point because they simply don’t have the votes to deny confirmation. And with many of the targeted Republicans (e.g., Gardner, Romney, and Murkowski) already publicly indicating that they will participate in a vote and likely vote for Trump’s nominee, the show is essentially over.
But is it? Senators of both parties are big on political shows, and a public hearing on RGB’s replacement would be real political theater, coming as it would right before the most consequential election in the last 60+ years. The Chairman of the Senate Judiciary Committee is already talking about holding three days of hearings during the week of 12 October, as noted here. Graham has been all talk and no action on multiple fronts lately, but one of his finest hours was during the 2018 Kavanaugh hearings. In a tough reelection campaign, he must believe that he can repeat that performance just in time to remind South Carolina voters of his “value” as their US senator.
Senate Majority Leader Mitch McConnell’s political calculus appears to be to hold hearings, but he hasn’t confirmed any hearings or a vote for the nominee will be held before Election Day (although he is apparently leaning in that direction). Does he have a political “tin ear,” or are negotiations underway on whether to hold hearings or simply go straight to a vote on President Trump’s nominee? And what about the Democrats? Will they clamor for hearings in order to preach to their base while risking the political damage in the aftermath of the Kavanaugh hearings when they lost 4 Senate seats during the 2018 mid-term elections?
Let’s examine some scenarios and their pluses and minuses.
No Hearings; Straight to Vote. There is precedent to go straight to a vote. FDR’s nominee James Byrne was confirmed the same day he was nominated to the Court in 1941. And this is the option recommended by luminaries such as Rush Limbaugh, who spent a lot of time arguing his case earlier this week. The upside for Republicans is good: they get their justice confirmed, which tips the balance on the Court. Also, the confirmation is a reminder to their base just before an important election that they have fulfilled a key objective to nominate and confirm conservatives to the Court. A minor downside for Republicans: the Democrat-media complex will attempt to make political hay by claiming unprecedented actions by Republican senators to deny public hearings on the nominee. Who knows how many uninformed Americans would be susceptible to that propaganda? Certainly some.
Hearings and Vote Before Election Day. This is the current conventional wisdom on what will transpire: 3 days of structured hearings followed by a confirmation vote before Halloween. This option neutralizes Democrat complaints of going straight to a vote without holding hearings. However, it opens the door to Democrat-media pressure on weak and vulnerable Republican senators. Would McConnell be willing to risk a failure to confirm because of an unforeseen event during hearings? A lot can happen in three days of hearings! Or is the inevitable political self-destruction by Democrats during the hearings the real objective for McConnell and the Republicans? The predictable insanity by Democrats in going after the nominee would prove to Americans that Democrats have no business being restored to control of the US Senate. What would the Democrats really do? Play to their base, or try to come across as “reasonable” in order to target swing voters? The Democrats’ insanity is a feature not a bug this year. A final consideration is whether to risk the nominee and her family being put through the grinder during the hearings as happened to the Kavanaughs.
Hearings and Vote After Election Day. McConnell has hinted that this might be his preferred course of action. It would be a disastrous political move and risk an historical opportunity to rebalance the Court if the Democrats succeed in stealing the election. There is literally no political gain for Republicans, and in fact, some Republican voters could be demoralized if the process is deferred until after the election. And certainly, there would be ZERO political benefit to President Trump. Is that McConnell’s goal? The Democrats would love this scenario to play out, especially if Biden steals the election.
One-Day Hearing and Vote Before Election Day. This is my preferred option. Hold one day’s worth of highly-structured questioning by senators, vote to confirm immediately by the Judiciary Committee, hold a cloture vote before the full Senate the next day, and then vote to confirm the nominee immediately afterward. Graham gets his political theater, the public observe more Democrat antics and vote accordingly on 3 November, pressure on Republican senators is minimized, personal attacks on the nominee and her family are minimized, the Democrats can’t complain about there being no public hearings, and the Trump-McConnell team confirm their third justice to the US Supreme Court. And the Republicans take their victory into Election Day while the Democrats are demoralized bigly.