An American flag flies at half-staff in front of the U.S. Supreme Court building in honor of Supreme Court Justice Antonin Scalia as the sun rises in Washington, Sunday, Feb. 14, 2016. Scalia, the influential conservative and most provocative member of the Supreme Court, has died. He was 79.

Manuel Balce Ceneta | AP Photo

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    When Senate Majority Leader Mitch McConnell (R-KY) publicly stated that lame-duck President Barack Obama should not be allowed to appoint a Supreme Court justice and that the seat should not be filled “until we have a new president,” he was spot on. 

    Under the Constitution, Senator McConnell has the power to block President Obama’s nominee to the U.S. Supreme Court.  There are a number of points in the confirmation process where the Senate can stop the process and there is nothing that the President and Senate Democrats can do to get the nomination confirmed. 

    Blocking the President’s nomination, without knowing who it is going to be, is the right thing to do with so many treasured freedoms, including the right to bear arms, hanging in the balance of one Supreme Court justice.  It is vexing that so many of the hot button issues of the day fall down on 5-4 decisions.  Republican senators should be run out of the Capitol if they allow President Obama to add another rubber stamp for his leftist agenda in the mold of Justices Elena Kagan or Sonia Sotomayor.

    It is a myth that the President appoints and the Senate must vote on a nomination. 

    There are two individuals who play a disproportionate constitutional role in this process.  President Obama can nominate somebody to the Court and Senate Majority Leader McConnell can refuse to proceed to that nomination if he so chooses.  There will be many stages in the process where the Senate can grind the process to a halt and all are constitutionally permissible.

    Making the current presidential election process a referendum on who the voters want to choose the next Supreme Court justice is the best way to resolve the impasse where the appointing authority, a Democrat, is at loggerheads with the confirming authority, the Republican-controlled Senate.  It is a myth that the President appoints and the Senate must vote on a nomination.  Republicans in the Senate have power, under the Constitution, to merely do nothing.

    Let’s take this process step by step to understand the pressure points and constitutional division of labor on appointing and confirming Supreme Court nominees.  According to the Congressional Research Service, the Senate has opted not to confirm some 25 individuals nominated by the sitting President to fill a vacancy on the Supreme Court.   

    The next nominee should be number 26.

     So how exactly do nominations work?

    The Constitution

    The Constitution details the powers of Congress in Article I and the powers of the Executive in Article II with some of those powers being shared between those two branches. The seating of justices on the Supreme Court is one of those shared powers. According to Article II:

    The President . . . 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. . . (Article II, Section 2, Clause 2)

    The Heritage Guide to the Constitution, in an essay by John McGinnis, explains what that clause means:  

    This clause contemplates three sequential acts for the appointment of principal officers-the nomination of the President, the advice and consent of the Senate, and the Appointment of the Official by the President.

    So the first act is for the President to nominate.  The next act is for the Senate to provide “advice and consent.”  The final power is the power of the President to appoint after the Senate consents to a nominee.  The President does not have the unfettered discretion to make a lifetime appointment to the Supreme Court.  The Senate must agree.  As a constitutional question, it is clear that our Founders did not see the Senate as a rubber stamp as evidenced by the fact that Senators have refused to confirm nominees in the past.

    More from McGinnis

    The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential "point of view" were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination. 

    In the midst of the debate over Scalia’s successor, do not make the mistake of thinking that the Senate should be a rubber stamp for President Obama to allow him to transform the nation on his way out the White House door.

    Nomination Process

    President Obama has already indicated his intent to make a nomination.  This process might take a period of time because traditionally the President has gathered names for consideration to vet before making a selection.  Under normal circumstances, a President will gather names and start the process of seeing if the nominees are of sufficient legal stature and are politically palatable for the Senate.  Considering that Leader McConnell has already publicly stated his intent to not take up the nomination, the President might use this process as a wholly political exercise.

    Traditionally, the President will do some research on a list of potential nominee’s records and put them through a Federal Bureau of Investigation (FBI) background check.  Names might be leaked to the press as a way to test reactions to different potential nominees. As a result, we may learn the name of President Obama’s nominee in the near future.  When the president formally transmits a nomination to the Senate, the nomination process officially moves to the Senate where members take on their constitutional role of “advice and consent.”

    Senate’s Role 

    The Senate has a number of traditions and rules that govern the nomination process. 

    When a nomination is sent to the Senate, the first act is for the Senate to receive the nomination.  Traditionally, the nomination is referred to the Senate Judiciary Committee, but nothing in the Constitution mandates that this happen.  The role of the Senate Judiciary Committee was not an early part of the confirmation process, but the tradition of the high profile Senate hearing has become part of our political rituals and the centerpiece of some of the most newsworthy hearings in Senate history.  McConnell could block this process early but not referring the nomination to the Senate Judiciary Committee - leaving the nomination in permanent limbo. 

    If, however, the nomination is sent to the Senate Judiciary Committee, all eyes will be on the chairman Sen. Chuck Grassley (R-Iowa). There will be immense pressure on Grassley to get the nomination out of committee so that the full Senate can act on the matter.  As this process proceeds, there will be more and more pressure to act. Therefore the further this nomination gets into the process, the more likely it is that Republicans cave and a nominee is confirmed.

    If President Obama’s nomination is sent to committee for an extended slow vetting process, tradition dictates a few time consuming duties.  Pre-hearing traditions include the nominee making courtesy calls to Senators offices, the Senate conducing a background check and the American Bar Association providing an analysis of the nominee’s judicial experience. 

    After vetting, hearings on the nominee will be scheduled.  The hearings consist of statements by the nominee and committee members, followed by hours and hours of questions for the nominee so that Senators can discern the qualifications and judicial philosophy of a nominee.  It is possible to allow a series of hearings that last over a month with outside witnesses to discuss the nominee’s judicial philosophy.  Hearings need not be scheduled quickly. 

    After hearings are concluded, the Judiciary Committee has an opportunity to vote out a nominee with or without a recommendation, or to not vote a nominee out of committee at all.  There has been a longstanding tradition that the committee will vote nominees out of Committee. However, this is an unusual circumstance with a lame duck President making a late nomination to a Republican-controlled Senate hoping for a Republican-controlled White House in 2017.  Republicans would be well within their constitutional power to vote the nominee down in the Senate Judiciary Committee and never to discharge the nominee from the committee process.

    It is important that Republicans don’t cave to pressure and filibuster the nomination if it comes to that.

    There is a way for Senate Democrats to use the Senate rules to get a nominee out of committee and onto the Senate calendar without a committee vote.  It is theoretically possible for the Democrats to use a "Motion to Discharge" to get the nominee out of the Senate Judiciary Committee.  A Senator, presumably Sen. Reid, would make the motion on the Senate floor to discharge the Obama nominee from the Senate Judiciary Committee, then another Senator would object.  The motion would lie over under Senate rules for one legislative day.  The next day the motion would be placed on the Senate calendar.  Once on calendar, any Senator can move to discharge.  A motion to discharge would start the process of forcing a vote and it is unclear to the author if a Senator can filibuster that motion. 

    This is how the procedure is described in the May 8, 2009 CRS report titled "Senate Consideration of Presidential Nominations: Committee and Floor Procedure":
    Although very few nominations proceed without the support of a committee, chamber rules make it possible for the full Senate to consider a nomination a committee does not report. Technically, Senate Rule XVII permits any Senator to submit a motion or resolution that a committee be discharged from the consideration of a subject referred to it. A motion to discharge a committee from the consideration of a nomination is, like all business concerning nominations, in order only in executive session.  If there is an objection to the motion to discharge, it must lie over until the next executive session on another day. It is fairly common for committees to be discharged from noncontroversial nominations by unanimous consent, often with the support of the committee, as a means of simplifying the process. It is far less common for Senators to attempt to discharge a committee from a nomination by motion or resolution.
    The existence of this procedure shows the possible folly of even referring a nominee to the Senate Judiciary Committee.

    If a nominee makes it onto the Senate calendar, then conservatives will be in a precarious position. Once a nominee is on the calendar, the Majority Leader can move to proceed to the nomination. It is clear that McConnell has already promised not to schedule a vote, yet there is another way for this nomination to get a vote.  If any Senator, most likely Senate Democratic Leader Harry Reid (D-NV) in this situation, can gather sixteen Senator’s signatures on a cloture petition and can get the floor to offer the motion, the Democrats can start the process of closing down a filibuster of a nominee.  At that point Republicans will have to hold 41 votes to block a final vote on the nominee.

    Now comes the problem that Republican Senators have been unwisely chipping away at the filibuster of judges.  During 2005, many Republicans were advocating for “up or down” votes for judges because they were frustrated with the pace at which the Democratic-controlled Senate was processing President George W. Bush’s nominations.  Now, that rhetoric will come back to haunt them.  It is important that Republicans don’t cave to pressure and filibuster the nomination if it comes to that. 

    Considering that there are fifty-four Republicans, one would not think that difficult to sustain a filibuster. It is not that easy, because many Senate Republicans have compromised themselves o the issue and have come out in the past against filibusters of judges. If political considerations start to push Republicans into voting for cloture and against the nomination, then it will be clear that Republicans are going to lose. 


    If conservatives find themselves in a situation where conservative Senators like Mike Lee (R-Utah), Ted Cruz (R-Texas), Rand Paul (R-Kentucky) and Marco Rubio (R-Florida) are leading a filibuster against the President’s nominee, the movement will be starting defeat in the face.  The moderates in the Senate like Sens. Susan Collins (barely a R-Maine) and Mark Kirk (R-Illinois) might team up with Senators who have pledged not to filibuster judges to create a coalition that will guarantee failure.  If Republicans get into a filibuster situation, then conservatives are in big trouble and should expect defeat.

    When you hear cries of injustice from the likes of President Obama, Democratic presidential candidate Hillary Clinton and Vice President Joe Biden, remind them that all three of them voted on January 30, 2006 to filibuster Samuel Alito’s nomination for the Supreme Court.  It will be tough to filibuster a nominee, but it might end up being the last line of defense for conservatives.

    If a filibuster can’t be sustained, the last hope is to defeat the nominee on an up or down vote.  In that circumstance, Republicans would have to hold all but three votes to defeat the nomination.  If Republicans lose four votes, Vice President Joe Biden is the tie breaker and conservatives lose.


    In conclusion, the Senate has a handful of ways to block a nomination:

    • No Referral to Committee - Senator McConnell can choose not to refer a nominee to the Senate Judiciary Committee;
    • No Committee Hearings – Senate Judiciary Committee Chairman Chuck Grassley can refuse to schedule hearings;
    • No Committee Vote – Chairman Grassley can refuse to schedule a committee vote;
    • Vote Nominee Down in Committee – The Senate Judiciary Committee can vote the nominee down in Committee;
    • Never Schedule a Full Senate – McConnell can refuse to move to proceed to the nomination;
    • Filibuster Nominee – Senators Lee, Cruz, Paul and Rubio would have a steep hill to climb;
    • Vote Down the Nominee on an Up or Down Vote – The entire Republican caucus would need to stick together.

    The smart move is to either refuse to refer the nomination to committee or to get enough Republicans to pledge to filibuster the nomination for the remainder of this year.  Either way, this is going to be a tough and bruising fight and a great test to see if Republicans can learn how to fight as hard as Democrats do.  This is one of the most important fights of our lifetime; let’s hope conservatives can win this one and punt a decision on a new justice to Election Day.

    Brian Darling is a former staffer for Sen. Rand Paul. Follow him on Twitter @BrianHDarling.